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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


id  it 
lake 
tice, 
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1  are, 


Yours  truly, 

This  work  is  not  intended  to  cover  any  forms 
for  Pleadinj^.     For  tliese  we  refer  you  to  our 

**^^W  f  teadittj)  with  goxm:' 


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PRACTICAL  FORMS. 


PEACTICAL  FOEMS 


FOB  USE  IN 


CIVIL  CASES  IN  COURTS  OF  RECORD 


IN 


THE  STATE  OF  TEXAS 


BY 

JOHN  SAYLES 

COUKSELLOB  AT  LAW 


ST.  LOUIS,  MO. 

THE  GILBEET  BOOK  COMPANY 
1897 


T 


5a,996fr 


Entered  according  to  Act  of  Congress,  in  the  year  1897,  by 

THE  GILBERT  BOOK  COMPANY, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


P'7 


a. 


TABLE  OF  CONTENTS. 


Forms. 

Oath  of  Office 1 

Clerks  and  Sheriffs  —  Offcial  Bonds 2-8 

Suit  in  Forma  Pauperis 9, 10 

Appointment  of  Counsel 11 

Guardian  ad  Litem 12 

Bond  for  Costs *      13 

Citation  for  Personal  Service 14r-19 

Citation  by  Publication 20-24 

Abatement  of  Suit 25-33 

Witnesses 34r-36 

Depositions 37-42 

Change  of  Venue 43-45 

Continuance 46-48 

Original  Attachment 49-55 

Garnishment 56-64 

Trial  of  Right  of  Property 65,66 

Sequestration 67-74 

Injunction 75-79 

Certiorari  to  Justices'  Courts 80-83 

Arbitration  and  Award 83-85 

Accounts gg 

Judgments 87-113 

Appeals  and  Writs  of  Error 114-121 

Executions  and  Orders  op  Sale 123-133 

Sheriff's  Deed 133 

Scire  Facias  to  Revive  a  Judgment  ..,,...  134 

Judgment  Liens  —  Abstract fc     I35 


OvJ» 


PRACTICAL  forms: 


No.  1. 

Oath  of  Office. 

T,  A.  B.,  do  solemnly  swear  [or  affirm]  that  I  will  faithfully  and 
impartially  discharge  and  perform  all  the  duties  incumbent  upon 

me  as ,  according  to  the  best  of  my  skill  and  ability,  agreeably 

to  the  constitution  and  laws  of  the  United  States  and  of  this  state; 
and  I  do  further  solemnly  swear  [or  ajfirm']  that  since  the  adoption 
of  the  constitution  of  this  state,  I,  being  a  citizen  of  this  state,  have 
not  fought  a  duel  with  deadly  weapons  within  this  state  nor  out  of 
it,  nor  have  I  sent  or  accejitecl  a  challenge  to  fight  a  duel  with  deadly 
weapons;  nor  have  I  acted  as  second  in  carrying  a  challenge,  or 
aided,  advised  or  assisted  any  person  thus  offending.  And  I  further- 
more solemnly  swear  [w  affirin]  that  I  have  not,  directly  nor  indi- 
rectly, paid,  offered  or  promised  to  pay,  contributed  nor  promised 
to  contribute,  any  money  or  valuable  thing,  or  promised  any  public 
office  or  employment,  as  a  reward  for  the  giving  or  withholding  a 
vote  at  the  election  at  which  I  was  elected  [or,  if  the  office  is  one  of 
appoint nient,  to  secure  my  appointment] :  So  help  me  God. 

The  above  must  be  taken  by  all  officers  before  they  enter  upon  the  duties  of 
their  office.     Const.,  art.  XVI,  §  1. 

It  must  be  taken  and  subscribed  by  a  sheriff  or  constable,  and  indorsed  on  his 
bond;  and  when  the  bond  is  given  and  the  oath  taken,  either  officer  may  enter 
upon  the  duties  of  his  office  without  waiting  for  a  commission.  R.  S.  4^92,  4893, 
4911,  4912. 

For  form  of  oath  to  be  administered  to  a  jury,  see  1  Tex.  Civ.  Prac,  §  470. 

No.  2. 

Sheriff^s  Bond. 
The  State  of  Texas,  ] 

County  of .        ) 

Know  all  men  by  these  presents,  that  we,  J.  D.  as  principal,  and 
M.  N.  and  O.  P.  as  sureties,  are  held  and  firmly  bound  unto  the 

*  See  Manual  of  the  Laios  of  Business,  by  Sa,y\es  &  Garrett,  for  suggestions 
and  miscellaneous  forms  in  Business  and  Legal  Transactions. 

See  Snyles^  Guide  for  Justices  for  forms  applicable  in  proceedings  injustices' 
Courts. 

For  Precedents  and  Rules  of  Pleading,  see  Texas  Pleading,  loith  Forms,  by 
John  Sayles. 

For  Indictments  and  other  forms  in  Criminal  Procedure,  with  notes  and  sug- 
gestions, see  Criminal  Fonns,  by  Sam.  A.  Willson. 

Forms  in  suits  to  enforce  Mechanics'  Liens,  see  2  Tex.  Civ.  Prac,  §.^  927,  928; 
R.  S.  3297.  3298. 


8  CLERKS   AND    SHERIFFS OFFICIAL   BONDS. 

governor  of  the  state  of  Texas,  and  his  successors  in  office,  in  the 

penal  sum  of dollars;  for  the  payment  of  which,  well  and 

truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally.     Given  under  our  hands  this 

day  of ,  A.  D.  18—. 

Whereas,  the  above  bounden  J.  D.  has  been  elected  to  the  office 
of  sheriff  of  the  county  aforesaid,  at  the  general  election  held 

therein  on  the  day  of ,  A.  D.  18 — :  now,  therefore,  the 

condition  of  the  above  obligation  is  such,  that  if  the  said  J.  D.  shall 
account  for  and  pay  over  to  the  persons  authorized  by  law  to  re- 
ceive the  same,  all  fines,  forfeitures  and  penalties  that  he  may  col- 
lect for  the  use  of  the  state,  or  any  county  within  the  state ;  and 
that  he  will  well  and  truly  execute,  and  due  return  make,  of  all 
process  and  precepts  to  him  lawfully  directed,  and  pay  over  all 
sums  of  money  collected  by  him  by  virtue  of  any  such  process  or 
precept  to  the  persons  to  whom  the 'same  are  due,  or  their  lawful 
attorney;  and  that  he  will  faithfully  perform  all  such  duties  as 
may  be  required  of  him  by  law,  then  the  above  obligation  to  be 
void,  or  else  to  remain  in  full  force.  J.  D. 

M.  ]sr. 
o.  p. 

The  sheriff's  bond  must  be  in  such  sum  as  may  be  directed  by  the  commis- 
sioners' court,  not  less  than  five  nor  more  than  thirty  thousand  dollars,  with  two 
or  more  good  and  sufficient  sureties,  to  be  approved  by  such  court.  The  bond 
and  oath  of  office  indorsed  thereon  must  be  recorded  in  the  office  of  the  clerk 
of  the  county  court,  and  deposited  in  said  office. 

The  bond  must  be  executed  within  twenty  days  after  the  officer  is  notified 
of  his  election  or  the  office  will  become  vacant.  The  commissioners'  court  may 
require  a  new  bond  whenever  they  may  deem  the  sheriff's  bond  insufficient. 
R.  S.  4891-4895.  For  form  of  bond  of  sheriff  as  collector  of  taxes,  see  Sayles' 
Laws  of  Business,  §  99. 


No.  3. 

Appointmetit  of  Deputy  Sheriff, 

The  State  of  Texas,  ) 

County  of .       f 

Know  all  men  by  these  presents,  that  I,  the  undersigned,  sheriff 
of  the  county  of aforesaid,  do  hereby  appoint dep- 
uty sheriff  in  and  for  said  county,  with  full  power  and  authority  to 
perform  all  the  acts  and  duties  required  of  me  as  sheriff  aforesaid. 

In  witness  whereof  I  have  hereunto  set  my  hand  this day 

of ,  A.  D.  18—. 

J.  D., 
Sheriff  of  the  County  of . 

The  oath  of  office  must  be  indorsed  on  the  appointment,  together  with  the 
certificate  of  tlie  officer  administering  it;  the  appointment  and  oath  must  be 
recorded  in  the  office  of  the  county  clerk  and  deposited  in  said  office.    R.  S.  4896. 


CLERKS    AND   SHERIFFS  —  OFFICIAL   BONDS.  9 

No.  4. 

Deputy  Sheriff'' s  Bond  to  the  Sheriff. 

The  State  of  Texas,  ) 
County  of .       f 

Know  all  men  by  these  presents,  that  we,  G.  H.  as  principal,  and 
M.  IS",  and  O.  P.  as  sureties,  are  held  and  firmly  bound  unto  J.  D., 

sheriff  of  the  county  of -,  in  the  sum  of dollars,  to  be  ])aid 

to  the  said  J.  D.,  his  executors,  administrators  or  assigns,  for  which 
payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally. 

Given  under  our  hands  this day  of ,  A.  D.  IS — . 

Whereas,  the  above  bounden  G.  H.  has  been  appointed  to  the 
office  of  deputy  sheriff  of  the«connty  aforesaid,  by  the  said  J,  D.  as 
such  sheriff";  now  the  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  G.  II.  shall  well  and  faithfully  execute  and  discharge 
the  duties  of  said  office  of  deputy  sheriff,  during  his  continuance 
therein,  without  any  deceit,  fraud,  delay,  neglect  or  oppression, 
and  shall  save  harmless  and  indemnify  the  said  J.  D.,  his  executors 
and  administrators,  from  and  against  all  acts  or  doings,  or  neglect 
of  duty  of  him,  the  said  G.  H.,  as  such  deputy  sheriff,  and  pay  off 
and  discharge  and  save  him  harmless  of  and  from  all  judgments, 
penalties,  fines,  costs,  charges  and  damages  in  any  action  or  pro- 
ceeding that  may  be  brought  against  the  said  J.  D.  as  such  sheriff, 
by  reason  of  any  act  or  omission  done,  committed  or  suffered  by  the 
said  G.  H.  as  such  deputy  sheriff;  and  will  likewise  pay  and  dis- 
charge and  save  the  said  J.  D.  harmless  from  any  costs  and  ex- 
penses he  may  incur  or  be  put  to  in  defending  any  action  or 
proceeding  commenced  against  him  as  such  sheriff,  by  reason  of  any 
acts  or  doings  or  neglect  of  duty  of  him,  the  said  G.  H.,  as  such 
deputy  sheriff,  whether  such  action  or  proceeding  is  rightfully 
brought  against  the  said  J.  D.  as  such  sheriff,  or  not;  and  that  the 
said  G.  H.  will  pay  to  the  said  J.  D.,  as  such  sheriff,  his  proportion 
of  the  legal  fees  received  by  him,  the  said  G.  H.,  at  any  time  as 
such  deputy  sheriff,  as  aforesaid ;  and  also  that  the  said  G.  H.  Avill, 
at  the  termination  of  his  ajipointment  as  such  deputy  sheriff,  ac- 
count to  and  with  tlie  said  J.  D.,  his  representatives,  assigns  or  duly 
authorized  agent,  for  all  moneys  collected  or  received  by  him  as 
such  deputy  sheriff'  as  aforesaid,  including  all  legal  fees  for  services 
as  such  deputy  sheriff";  and  will  i)ay  over  all  moneys  collected  by 
him  as  aforesaid,  and  remaining  in  his  hands,  as  well  as  the  portion 
or  share  of  the  legal  fees  received  by  him,  the  said  G.  II.,  as  such 
deputy  sheriff"  as  aforesaid,  then  this  obligation  to  be  null  and  void; 
otnerwise  to  remain  in  full  force  and  virtue.  G.  H. 

M.  K. 
O.  P. 

The  above  bond  is  authorized,  but  not  required,  by  article  4897  of  the  Revised 
Statutes.  By  that  article  a  sheriff  has  tlie  same  remedies  against  a  deputy  and 
Ills  sureties  that  any  person  can  have  against  the  sheriff  and  his  sureties. 


10  CLEKKS   AND    SHEKIFFS OFFICIAL   UONDS. 

No.  5. 

Bond  of  Clerk  of  District  Court. 

The  State  of  Texas, 
County  of . 

Know  all  men  by  these  presents,  that  we,  W.  F.  as  princi))al, 
and  M.  N.  and  O.  P.  as  sureties,  are  held  and  firmly  bound  unto 
the  governor  of  the  state  of  Texas,  and  his  successors  in  office,  in 
the  sum  of  five  thousand  dollars,  for  the  payment  of  which,  well 
and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally.  Griven  under  our  hands,  this 
.  day  of ,  A.  D.  18—. 

Whereas,  the  above  bounden  W.  F.  hath  been  elected  to  the 
office  of  clerk  of  the  district  court  inand  for  the  county  aforesaid, 

at  the  general  election  held  therein  on  the day  of ,  A.  D. 

18 — ;  now,  therefore,  the  condition  of  this  obligation  is  such,  that 
if  the  said  "W".  F.  shall  safely  keep  the  records  and  faithfully  dis- 
charge the  duties  of  his  office,  then  the  above  obligation  to  be  void ; 
or  else  to  remain  in  full  force.  W.  F. 

M.  N. 
O.  P. 

This  bond,  after  having  been  approved  by  the  commissioners'  court,  with  the 
oath  of  office  indorsed,  must  be  filed  and  recorded  in  the  office  of  tlie  county 
clerk.     Tlie  oath  prescribed  by  the  constitution  must  be  taken.     R  S.  1082. 

The  bond  of  the  county  clerk  may  be  the  same  as  the  above,  except  that  it 
must  be  for  a  sum  not  less  than  two  thousand  nor  more  than  ten  thousand  dol- 
lars, to  be  fixed  by  the  commissioners'  court.  The  bond,  with  the  oath  in- 
dorsed, must  be  recorded  in  the  county  clerk's  office,  and  deposited  in  the  office 
of  the  clerk  of  the  district  court.     R.  S.  1137. 

For  a  form  for  a  county  judge's  bond,  see  Sa3-les"  Laws  of  Business,  §  998. 

No.  6. 

Appointment  of  Cleric  Pro  Tempore. 

API 

'     ■  (     In  the  District  Court, •  County,  the day  of , 

A.  D.  18—. 


C.  b.  i 


It  appearing  to  the  court  that ,  the  clerk  of  this  court,. 

is  a  party  to  the  above-entitled  cause,  it  is  ordered  by  the  court 

that be  and  he  is  hereby  appointed  clerk  jjro  tempore  for 

the  purposes  of  said  suit. 
• 

The  appointment  may  be  made,  hy  a  district  or  county  judge,  either  in  term 
time  or  vacation,  of  his  own  motion,  or  on  the  application  of  any  person  inter- 
ested, whenever  the  clerk  is  a  party  to  any  pending  or  proposed  suit,  motion  or 
proceeding.  The  person  appointed  must  take  an  oath  faithfully  and  impartially 
to  perform  the  duties  of  such  appointment,  and  must  enter  into  a  bond.  R.  S. 
1080,  1081,  1133,  1136. 


CLEHKS    AND    SHERIFFS OFFICIAL   BONDS.  It 

No.  7. 

Bond  of  Cleric  Pro  Tempore. 

The  State  of  Texas,  ) 
County  of .       ) 

Know  all  men  by  these  presents,  that  we,  J.  K.  as  principal,  and 
M.  N.  as  surety,  are  held  and  firmly  bound  unto  the  state  of  Texas 

in  the  penal  sum  of dollars  [to  he  fixed  hy  the  judge  of  the  courts 

for  the  payment  of  which,  well  and  truly  to  be  made,  Ave  bind  our- 
selves, our  heirs,  executors  and  administrators,  jointly  and  severally. 
Given  under  our  hands  the day  of ,  A.  D.  18 — , 

Whereas  the  above  bounden  J.  K.  has  been  appointed  clerk  pi'o 

tempore  by  the  judge  of  the  district  court  of county  [or  the 

county  court],  in  a  cause  pending  in  said  court,  in  which  A.  B.  is 
plaintiff  and  C.  J),  is  defendant;  now,  therefore,  the  condition  of 
this  obligation  is  such,  that  if  the  said  J.  K.  shall  faithfully  perform 
his  duties  under  such  appointment,  then  this  obligation  shall  be  void ; 
otherwise  to  remain  in  full  force.  J.  K. 

M.  X. 

There  must  be  one  or  more  sureties,  to  be  determined  by  the  judge.  The  ap- 
pointee performs  all  the  duties  required  by  law  of  the  clerk  in  the  particular 
proceeding.    R  S.  1081,  1136. 

No.  8. 

Appointment  of  Deputy  Cleric. 

The  State  of  Texas, 
County  of , 

Know  all  men  by  these  presents,  that  I,  the  undersigned,  clerk 
of  the  district  court  [or  county  court]  of  the  county  of afore- 
said, do  hereby  appoint deputy  clerk  of  the  district  court 

in  and  for  said  county. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  the  seal  of 
said  court  this day  of ,  A.  D.  18 — .^ 

[Z.  S.]  ^Y.  F., 

Clerk  of  the  District  Court  of County. 

The  appointment  of  a  deputy  clerk  of  the  district  court  must  be  filed  and 
recorded  in  the  office  of  the  clerk  of  the  county  court.  R.  S.  1083.  The  appoint- 
ment of  a  deputy  county  clerk  must  be  recorded  in  the  office  of  the  clerk  of 
the  county  court  and  deposited  in  the  office  of  the  clerk  of  the  district  court. 
R.  S.  1138. 

The  deputies  must  take  the  oatli  of  office  prescribed  by  the  constitution 
(Form  No.  1,  supra).  R.  S.  1084,  1139.  They  are  not  required  by  law  to  give 
bond. 


12  SUIT   IN    FORMA   PAUPERIS. 

No.  9. 

Affidavit  to  Je  Admitted  to  Sue  as  a  Poor  Person. 


'No.  — .     V.      >•  In  the Court, County. 

CD.) 
A.  B,,  plaintiff  in  the  above-entitled  cause,   being  duly  Severn, 
says  he  is  too  poor  to  pay  the  costs  of  court  and  is  unable  to  give 
security  therefor.  A.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

The  truth  of  the  above  affidavit  may  be  contested  by  the  clerk,  the  trial  to 
be  before  the  judge  at  the  next  term  after  the  contest  is  filed.  R.  S.  1442;  1 
Tex.  Civ.  Prac,  §  850. 


No.  10. 

Ap])ointment  of  Counsel  for  Poor  Person. 

A.  B.  ) 

No.—.     V.      )■ 

CD.) 

A.  B.,  being  duly  sworn,  says  that  he  is  too  poor  to  employ  coun- 
sel to  prosecute  [or  defend]  the  above-entitled  cause.  A.  B. 

Sworn  to  and  subscribed  before  me,  this day  of ,  A.  D. 

18—.  W.  R, 

Clerk  of Court, County. 

To  the  Hon. ,  Judge  of  the Court  of County : 

Your  petitioner,  A.  B.,  represents  that  C  D.  is  justly  indebted 
to  him  in  the  sum  of dollars;  that  he  has  commenced  an  ac- 
tion against  him  in  the court  in  and  for  the  county  of 

for  the  same,  but  finds  himself  unable  [or  hath  not  yet  cominenced 
an  action  against  him  for  the  same,  heing  unahle~]  to  carry  on  [or 
defend]  said  cause,  as  appears  by  the  affidavit  hereto  annexed. 
Wherefore  he  prays  that  he  raa}'^  be  admitted  to  prosecute  his  said 
action  inforinajjaiiperis,  and  that  F.  G.  H.,  Esq.,  may  be  assigned 
to  him  as  his  attorney  to  prosecute  [or  defend]  his  said  suit. 

A.  B. 

It  is  ordered  that  A.  B.  be  admitted  to  prosecute  [or  defend]  his 
suit  in  forma  pauperis,  and  F.  G.  H.,  Esq.,  is  hereby  appointed  at- 
"torney  and  counsel  in  his  behalf,  as  prayed  for  in  the  foregoing 
petition.  E.  B.  B., 

Judge  of Court, County. 

The  appointment  may  be  made  by  the  judges  of  the  district  and  county 
courts.    K.  S.  1109,  1164. 


APPOINTMENT   OF   COUNSEL BOND   FOK   COSTS.  15 

No.  11. 

Appointment  of  Counsel  to  Defend  for  One  Cited  hy  Piiblication^ 

In  the Court  of  County. 

It  appearing  to  the  court  that  C.  D.,  defendant  in  this  cause,  has 
been  duly  cited  by  publication,  and  that  he  has  not  filed  an  answer 
herein  within  the  time  prescribed  by  law,  F.  G.  H.,  Esq.,  an  at- 
torney of  this  court,  is  hereby  appointed  to  defend  this  suit  on  be- 
half of  the  said  C.  D. 

An  attorney  must  be  appointed  in  all  cases  where  a  defendant  is  cited  hy- 
publication  and  fails  to  appear.  R.  S.  1346,  3609.  See  1  Tex.  Civ.  Prac,  §  310». 
and  notes. 

No.  12. 

Appointment  of  G-uardian  ad  Litem. 

A.  B.  ) 

No.  — .         V.  V    In  the Court  of  County. 

C.  D.  and  E.  F.  ) 
It  being  shown  to  the  court  that  E.  F.,  one  of  the  defendants  in 
the  above-entitled  cause,  is  a  minor  [idiot,  lunatic  or  non  compos^ 

mentis],  and  that  he  has  no  guardian  within  this  state, is 

hereby  appointed  guardian  ad  litem  for  the  purpose  of  defending 
said  suit  for  the  said  E.  F. 

See  1  Tex,  Civ.  Prac,  §§  193, 194.  As  to  compensation  of  guardian  ad  liteniy. 
see  1  Tex.  Civ.  Prac,  §728;  R.  S.  1210. 

No.  13. 

Bond  for  Costs. 

In  the Court  of County. 

Know  all  men  that  we,  A.  B.  as  principal,  and  M.  IS",  and  O.  P. 
as  sureties,  do  hereby  acknowledge  ourselves  bound  to  pay  C.  D. 

the  sum  of dollars,  conditioned  that  the  said  A.  B.,  plaintifif  in 

the  above-entitled  suit,  will  pay  all  costs  that  may  be  adjudged 
against  him  in  said  suit,  during  the  pendency  or  at  the  final  deter- 
mination thereof,  and  judgment  for  said  costs  may  be  rendered 
against  us. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 


Approved  this day  of ,  A.  D.  18 — . 

W.  F., 


A.  B. 
M.  K 
O.  P. 


Clerk  of Court, County. 

Security  may  be  required  at  any  time  before  final  judgment,  and  may  be 
given  at  any  time  before  the  suit  is  dismissed.     A  motion  must  be  made  and 


14  CITATION   rOK   PEKSONAL    SERVICE. 

entered  in  the  motion  docket,  and  there  must  be  an  order,  made  in  distinct  and 
appropriate  terms,  and  entered  in  the  minutes,  of  which  the  defendant  must 
have  actual  notice.    See  1  Tex.  Civ.  Prac,  §§  354,  355;  R.  S.  1489-1441. 
For  aflSdavit  of  inability  to  give  Security,  see  Form  No.  9. 


No.  14. 

Citation  for  Personal  Service. 

The  State  of  Texas,  To  the  Sheriff  or  any  Cotistableqf County, 

Greeting: 

You  are  hereby  commanded  to  summon to  appear  at 

the  next  regular  term  of  the court  of county,  to  be  held 

at  the  court-house  thereof,  in  the of ,  on  the Mon- 
day in ,  18 — ,  being  the day  of ,  18 — ,  then  and  there 

to  answer  a  petition  tiled  in  said  court  on  the day  of , 

18 — ,  in  a  suit  numbered  on  the  docket  thereof,  wherein 

is  plaintiff  and is  defendant,  the  nature  of  plaintiffV 


demand  being  as  follows:  \8tate  hriejly,  hut  correctly  and  substan 
tially,  the  nature  of  the  demand.'] 

\lf  the  writ  is  to  he  served  without  the  county  in  which  the  suit  is 

pending,  add:  And  you  will  also  deliver  to  the  said [or 

the  said and each]  the  accompanying  certified 

copy  of  plaintiff's  petition,] 

Herein  fail  not,  but  have  you  before  said  court,  on  the  said  first 
day  of  the  next  term  thereof,  this  writ,  with  your  return  thereon, 
showing  how  you  have  executed  the  same. 

Witness, ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office,  in  the 
of ,  this  the day  of ,  A.  D.  18 — . 

[Z.  S.-\  W.  F., 

Clerk  of Court  of County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court  of County. 

A  writ  must  be  issued  to  each  county  in  which  there  is  a  defendant  or  de- 
fendants. Where  the  writ  is  served  within  the  county  in  which  the  suit  is  pend- 
ing, the  service  is  made  by  delivering  to  each  defendant  a  true  copy  of  the  writ. 
It  must  be  served  before  the  return  day.    R.  S.  1318,  1218,  1328. 

In  an  alias  citation  the  commencement  is:  "You  are  hereby  commanded,  as 
before,  that  you  summon,"  etc.  An  alias  pliiries  citation  commences:  "You 
are  hereby  commanded,  as  oftentimes  before,  that  you  summon,"  etc. 

Sheriff'' s  Indorsement  and  Return. 

Came  to  hand  on  the  day  of  ,  18 — ,  at o'clock 

—  M. 

Executed  within  the  said  county  of on  the day  of , 

18 — ,  by  delivering  to  the  within  named ,  in  person  [or  to 

the  within  named and each],  a  true  copy  of 


CITATION   FOR   PERSONAL    SERVICE.  1$ 

this  citation.     [If  served  without  the  county  in  ichich  the  suit  is 

2)endi7ig,  add:  and  I  also  delivered  to  said ,  in  person  [or 

to  said, and each  in  ■jperson\  a  certified  copy  of 

plaintiff's  petition.  J.  J^., 

Siieriff  of County. 

J>y ,  Deputy. 

The  day  and  hour  of  receiving  the  writ  must  be  indorsed  on  the  writ.  Tlio 
return  may  be  indorsed  on  or  attaclied  to  the  writ.     R.  S.  1217,  123."). 

If  the  writ  has  not  been  served,  state  w}i}%  the  diligence  used,  and  where  the 
defendant  may  be  found,  if  known.     R.  S.  1226. 


No.  15. 

Citation  ivhere  the  Suit  is  ht/  or  afiainst  One  in  a  Particular  Char- 
acter or  Capacity. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County^ 

Greeting: 

You  are  hereby  commanded  to  summon • and , 

partners,  to  appear,  etc.,  to  answer  the  petition  of ,  exec- 
utor of  the  last  will  and  testament  of ,  deceased,  etc,  [or 

of ■  and ,  husband  and  wifej  or ,  su?'- 

vivor  of and ,  partners,'  or ,  receiver 

of  the company^  etc. — proceeding  as  in  Form  iVb.  1j^'\. 


No.  16. 

Citation  against  a  Domestic  Corporation. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County ^ 

Greeting: 

You  are  hereby  commanded  to  summon  the  company,  of 

which is  president  [name  the  president,  treasurer,  secre- 
tary, or  the  local  agent  who  represents  the  company  in  the  county  in 
which  the  suit  is  pending,  and  continue  as  in  Form  iVb.  lJf\. 

The  above  is  the  proper  form  where  the  defendant  is  a  joint-stock  company. 
Service  may  be  made  on  either  of  the  officers  named,  or  by  leaving  a  copy  of 
the  writ  at  the  principal  office  of  the  company  during  office  hours. 

If  the  suit  is  against  a  receiver  of  a  railroad  company,  service  may  be  had 
upon  the  receiver,  or  upon  the  general  or  division  superintendent,  or  upon  any 
agent  of  the  receiver  who  resides  in  the  county  in  which  the  suit  is  brought. 

It  is  the  better  practice  to  name  the  local  agent,  if  any  (1  Tex,  Civ.  Prac, 
§  283);  but  the  writ  must  cite  the  company,  not  the  officer  or  agent. 


IG      CITATION    FOK   PERSONAL   SEKVICE  —  CITATION   BY   PUBLICATION, 

No.  17. 

Citation  against  a  Foreign  Corporation. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County,. 

Greeting: 

You  are  hereby  commanded  to  summon  the  company,  of 

which is  president  [or  name  the  vice-president,  secretary, 

treasurer,  general  manager,  or  any  local  agent  within  the  state,  on 
either  of  whom  service  Tnay  he  made,  and  proceed  as  in  Form  No.  l]i\. 

The  above  includes  any  "  foreign  private  or  public  corporation,  joint-stock 
company  or  association,  or  acting  corporation  or  association." 

In  a  suit  against  a  life  or  health  insurance  company  by  a  policy-holder,  serv- 
ice may  be  made  upon  any  person  within  the  state  holding  a  power  of  attorney 
from  such  company.    R.  S.  3070. 

No.  18. 

Citation  for  a  City,  Toivn  or  Tillage. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County, 

Greeting: 

You  are  hereby  commanded  to  summon  the  city  of ,  of  which 

is  mayor  \or  name  the  clerk,  secretary  or  treasurer,  and 

proceed  as  in  Form,  Mo.  lJf\. 

In  a  suit  against  a  county  the  citation  is  served  on  the  county  judge. 

No.  19. 

Citation  against  Partners. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County,, 

Greeting: 

You  are  hereby  commanded  to  summon and , 

partners  {naming  each  partner,  and  proceed  as  in  Form  No.  1J^\. 

It  seems  that  it  is  sufficient  to  state  only  the  firm  name,  if  the  individual 
names  are  stated  in  the  petition.     See  1  Tex.  Civ.  Prac,  §§  369,  286. 

Sei'vice  on  one  member  will  authorize  a  judgment  against  the  firm  and 
against  the  member  served,  but  no  personal  judgment  can  be  entered  against 
the  members  not  served.    E.  S.  1224,  1347;  1  Tex.  Civ.  Prac,  §  286. 

No.  20. 

Affidavit  for  Citation  ty  FiiMication. 

In  the Court, County. 

A.  B.,  plaintiff  in  the  above-entitled  cause,  being  duly  sworn» 
says  that  the  defendant  is  not  a  resident  of  this  state  [or  that  the  de- 
fendant is  absent  from  this  stale,  or  that  the  defendant  is  a  transient 


CITATION    BY    PUBLICATION.  17 

person,  or  that  the  residence  of  the  defendant  is  unhnoimx  to  the  o.ffi- 
mit].  Wherefore  he  prays  that  a  citation  be  issued  for  service  by 
publication. 

Sworn  to  and  subscribed  this day  of ,  A.  D.  18 — ,  before 

me.  "        W.  ¥., 

Clerk  of Court, County. 

If  the  suit  is  against  a  life  or  health  insurance  company  by  a  policy-holder, 
the  affidavit  may  state  that  no  person  can  be  found  in  the  state  holding  a  power 
of  attorney  from  such  company.     R.  S.  3070. 

In  a  suit  for  the  partition  of  real  estate,  state  that  an  undivided  portion  of 
the  land  described  in  the  petition  is  owned  by  some  person  or  persons  unknown 
to  the  affiant.    R.  S.  3009. 

No.  21. 

Citation  hy  Publication. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County, 

Greetimj: 

You  are  hereby  commanded  to  summon ,  whose  resi- 
dence is  unknown,  to  appear  at  the  next  regular  term  of  the 

court  of county,  to  be  held  at  the  court-house  thereof,  in  the 

of ,  on  the Monday  in ,  18 — ,  being  the day 

of ,  IS — ,  then  and  there  to  answer  a  petition  filed  in  the  said 

€Ourt  on  the  da}^  of  ,  18 — ,  in  a  suit  numbered on 

the  docket  thereof,  wherein is  plaintiff  and •  is 

defendant,  the  cause  of  action  being  alleged  as  follows:  {Give  a 
brief  statement  of  the  cause  of  action.']  Y^u  are  further  commanded 
to  serve  this  citation  by  publishing  the  same,  once  in  each  week  for 
four  consecutive  weeks  previous  to  the  return  day  hereof,  in  some 
newspaper  published  in  your  county;  but  if  there  be  no  news- 
paper published  in  said  county,  then  in  any  newspaper  published 

in  the  judicial  district  [the  one  in  ivhich  the  suit  is  pending] ; 

but  if  t^^ere  be  no  newspaper  published  in  said  judicial  district,  then 
in  a  newspaper  published  in  the  judicial  district  nearest  to  said  dis- 
trict. 

Herein  fail  not,  but  have  3'ou  before  said  court  on  the  said  first 
<lay  of  the  next  term  thereof,  this  writ,  with  your  return  thereon, 
showing  how  you  have  executed  the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  in  the of 

,  this  the  — —  day  of ,  A.  D.  18 — . 

[Z.  S.]  W.  R, 

Clerk  of Court  of County. 

Issued  this day  of ,  A.  D.  IS — . 

W.  P., 
Clerk  of Court  of County. 

The  above  form  may  be  adapted  to  all  ordinary  cases,  where  the  defendant 
is  a  non-resident,  or  is  absent  from  the  state,  or  is  a  transient  person,  or  where 
liis  residence  is  unknown.     R.  S.  1285,  ]o04a,  3070. 

In  suits  for  partition  of  real  estate:  Give  a  brief  statement  of  the  nature  of 


18  citatio:n'  by  publication. 

the  suit,  a  description  of  the  interest  of  the  unknown  owner  or  owners,  and 
command  the  officer  to  publish  the  citation  in  some  newspaper  in  the  county 
where  the  writ  issued,  if  tliere  be  a  newspaper  published  in  such  county,  and  if 
not,  then  in  the  nearest  county  where  a  newspaper  is  published,  for  four  suc- 
cessive weeks  previous  to  the  return  day.    R.  S.  3609. 


No.  22. 

Affidavit  for  Citation  to  Unknown  Heirs. 
A.  B.  ) 

1^0.  — .  V.  [ 

Heirs  of  C.  D.  ) 

A.  B.  [or ,  the  agent,  or  the  attorney,  of  A.  ^.],  plaintiff 

in  the  above-entitled  cause,  being  duly  sworn,  says  that  the  names 
of  the  heirs  of  C  D.,  deceased,  parties  to  said  suit,  are  unknown  to 
affiant. 

Wherefore  he  prays  that  citation  may  issue  for  service  by  publi- 
cation, 'a.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

The  suit  may  be  brought  against  the  heirs  of  a  deceased  person,  and  their 
heirs  or  legal  representatives.    R.  S.  1236. 


No.  23. 

Citation  for  Unltnown  Heirs. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County, 

Greeting: 

You  are  hereby  commanded  to  summon  the  heirs  of , 

deceased,  whose  names  are  unknown,  to  appear  at  the  next  regular 

term  of  the court  of county,  to  be  held  at  the  court-house 

thereof,  in  the  of  ,  on  the  Monday  in  ,  18 — , 

being  the day  of ,  18 — ,  then  and  there  to  answer  a  peti- 
tion filed  in  said  court  on  the  day  of ,  18 — ,  in  a  cause 

numbered ,  wherein is  plaintiff  and  the  unknown 

heirs  of are  defendants,  the  cause  of  action  being  alleged 

as  follows:  \_Give  a  hrief  statement'of  the  cause  of  action.']  You  are 
further  commanded  to  serve  this  citation  by  publishing  the  same 
once  in  each  week  for  eight  successive  weeks  previous  to  the  return 
day  hereof,  in  a  newspaper  ])ublished  in  your  county;  but  if  no 
newspaper  is  published  in  said  county,  then  in  the  nearest  county 
where  a  news])aper  is  published. 

Herein  fail  not,  but  have  you  before  said  court,  on  the  said  first 
day  of  the  next  term  thereof,  this  writ,  with  your  return  thereon^ 
showing  how  you  have  executed  the  same. 


CITATIOX   BY    PUBLICATION ABATEMENT   OF   SUIT.  19 

"Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  in  the of 

— ,  this  the day  of ,  A.  D.  18 — . 

[Z.  6\]  W.  R, 

Clerk  of Court  of County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court  of County. 


No.  24. 

Officer's  Return  of  Service  hy  PnhUcation. 

Came  to  hand  this day  of ,  A.  D.  18 — ,  at o'clock 

—  M.,  and  executed  by  publishing  the  same  in  the  ,  a  news- 
paper published  in  the  county  of [slah/uj  the  fact  acGordlng  to 

the  command  of  the  writ,  and  whyitioas  not  piihli shed  in  the  oj}icer''s 
county,  if  such  is  the  fact\  once  in  each  week  for  four  successive 
weeks  {or  eight  successive  weeks']  ])revious  to  the  return  da}'^  thereof, 

said  publication  having  been  made  on  the , , and ■ 

days  of  ,  A.  D.  18 —  [or  the  , , and days  of 

,  a7id  on  the  , , and  days  of  ,  A.  D. 

18 — ],  and  I  herewith  return  a  printed  copy  of  said  publication. 

J.B., 
Sheriff  of County. 

The  return  must  show  within  itself  that  the  process  has  been  legally  served. 
1  Tex.  Civ.  Prac,  §  309. 

No.  25. 

Suggestion  of  the  Death  of  a  Sole  Plaintiff  and  Order  Mailing  His 
Hcpresentative  a  Party. 

A.  B.  ) 

:Nro.  — .     V.      [  ss.     day  of ,  A.  D.  18—. 

CD.) 
And  now  comes  E.  F.  and  gives  the  court  here  to  understand  and 
be  informed  that  since  the  last  term  of  this  court  the  said  phiintitl', 
A.  B.,  died,  and  that  the  said  E.  F.  is  now  the  administrator  [or 
executor]  of  the  estate  of  the  said  A.  B.;  and  that  the  judgment 
recovered  in  this  cause  in  behalf  of  the  said  A.  B.  would  be  assets 
in  his  hands,  Avhich  the  said  C.  D.  does  not  deny,  but  admits  the 
same  to  be  true.  It  is  therefore  ordered  that  the  suit  be  continued 
in  the  name  of  the  said  E.  F.,  administrator  [or  executor]  as  afore- 
said of  the  said  A.  B. 

If  there  be  no  administration,  and  no  necessity  therefor,  the  suggestion  may 
be  made  by  the  heir,  and  he  may  become  a  party.  See  1  Tex.  Civ.  Prac,  §  315; 
R.  S.  1246. 


20  ABATEMENT    OF    SUIT. 

No.  26. 

Suggestion  of  the  Death  of  a  Sole  Defendant. 

day  of ,  A.  T>.  18—. 


And  now  comes  the  said  A.  B.,  by  his  attorney,  and  the  said 
C.  D.  comes  not;  and  hereupon  the  said  A.  B.  gives  the  court  here 
to  understand  and  be  informed  that  since  the  last  term  of  this 
court  the  said  C.  D.  died.  It  is  therefore  ordered  that  a  writ  of 
scire  facias  do  issue  to  the  legal  representative  of  the  said  C.  D., 
when  known,  requiring  him  to  appear  at  the  next  term  of  this 
court,  then  and  there  to  show  cause,  if  any  he  has,  why  he  should 
not  be  made  a  party  defendant  to  said  suit. 

The  suggestion  may  be  entered  of  record  in  open  court,  or  the  court  may  act 
on  the  petition  of  tlie  plaintiff.     R.  S.  1248. 

The  suit  may  be  revived  against  tlie  heir  in  a  proper  case.  See  1  Tex.  Civ. 
Prac,  §817;  R.  S.  1348. 

Where  an  executor  or  administrator  is  a  party,  either  as  plaintiff  or  defendant, 
and  dies,  or  ceases  to  be  executor  or  administrator  befoi'e  verdict,  his  successor, 
or  the  heir  in  a  proper  case,  may  be  brought  in.    R.  S.  1249. 

No.  27. 

Suggestion  of  the  Death  of  One  of  Two  Plaintiffs,  the  Cause  of 

Action  Surviving. 
A.  B.  and  C.  D.  ) 

]Sro.  — .        V.  y  ss.     day  of ,  A.  D.  18—. 

*  E.  F.  .  ) 
And  now  comes  the  said  A.  B.,  by  his  attorney,  and  the  said 
C.  D.  comes  not;  and  hereupon  the  said  A.  B.  gives  the  court  here 
to  understand  and  be  informed  that  since  the  last  term  of  this 
court,  and  before  this  day,  the  said  C.  D.  died,  and  the  said  A.  B. 
then  survived  him,  which  the  said  E.  F.  does  not  deny,  but  admits 
the  same  to  be  true.  It  is  therefore  ordered  that  no  further  pro- 
:  ceedings  be  had  at  the  suit  of  the  said  C.  D.,  but  that  the  suit  be 
continued  in  the  name  of  the  said  A.  B.,  the  surviving  plaintiff. 

The  above  proceeding  is  proper  when  the  cause  of  action  survives  to  the  sui*- 
viving  plaintiff  and  against  the  surviving  defendant.     R.  S.  1350. 


No.  28. 

Suggestion  of  the  Death  of  One  Who  Sues  for  the  Use  of  Another. 


No.  — .    V.      [  ss.    day  of ,  A.  D.  18—. 

CD.  ) 
And   now  comes  E.  F.,  and  gives  the  court  here  to  understand 
and  be  informed  that  since  the  last  term  of  this  court  the  said 


ABATEMENT   OF    SUIT.  21 

plaintiff,  A.  B.,  died ;  and  it  api)earing  to  the  court  that  this  suit 
was  brought  by  the  said  A.  B.  for  the  use  of  the  said  E.  F.,  it  is 
ordered  tliat  the  same  be  continued  in  the  name  of  the  said  E.  F. 
as  plaintiff. 

No.  29. 

Suggestion  of  (lie  Death  of  a  Sole  Plaintiff  in  Actions  for  Causing 

Death. 
A.  B.  ) 

'No.  — .     V.      [  ss.     day  of ,  A.  D.  18 — . 

CD.  ) 
And  now  comes  E.  F.,  and  gives  the  court  here  to  understand 
and  be  informed  that  since  the  last  term  of  this  court  the  said 
plaintiff,  A.  B.,  died;  and  it  appearing  to  the  court  that  the  said 
E.  F.  is  a  child  of  the  said  A.  B.,  and  one  of  the  parties  entitled  to 
any  money  that  may  be  recovered  in  this  suit,  it  is  ordered  that  the 
said  E.  F.  be  substituted  as  a  party  plaintiff,  and  that  this  suit  be 
prosecuted  in  his  name  for  the  benefit  of  the  persons  entitled. 

If  the  defendant  in  the  above  action  die,  his  executor,  administrator  or  heir 
may  be  made  a  party.    R.  S.  1255. 

No.  30. 

Suggestion  of  the  Marriage  of  a  Female  Plaintiff. 


day  of ,  A.  D.  18—. 


And  now  comes  A.  B.,  and  gives  the  court  to  understand  and  be 
informed  that  since  the  institution  of  this  suit  she  has  intermarried 
with  one  E.  F.,  who  now  makes  himself  a  party  to  this  suit,  and  it 
is  so  ordered. 

Foi-  the  proper  practice  where  plaintiff  fails  to  make  the  suggestion,  see  1  Tex. 
Civ.  Prac,  §  321. 

.   No.  31. 
Suggestion  of  the  Marriage  of  a  Female  Defendant. 


day  of ,  A.  D.  18—. 

And  now  comes  the  said  A.  B.,  by  his  attorney,  and  gives  the  court 
to  understand  and  be  informed  that  since  the  institution  of  this  suit 
the  said  C.  D.  has  intermarried  with  one  E.  F.,  whicli  the  said  0.  D. 
does  not  deny,  but  admits  the  same  to  be  true.  It  is  therefore  or- 
dered that  a  writ  of  scire  faci<u  do  issue  to  the  said  E.  F.,  com- 
manding him  to  appear  at  the  next  term  of  this  court,  then  and 


22  ABATEMENT   OF    SUIT. 

there  to  show  cause,  if  any  he  has,  why  he  should  not  be  made  a 
party  defendant  to  this  suit. 

The  suggestion  of  the  marriage  may  be  entered  of  record  in  open  court,  or 
the  court  may  act  upon  a  petition  filed  with  the  clerk.    R.  S.  1253. 

No.  32. 

Scire  Facias  to  Maize  Parties. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County^ 

Greeting: 

Whereas,  at  the  last  term  of  our  court  for  the  county  of 

,  begun  and  holden  on  the ■  day  of -^  A.  D.  18 — ,  it  was 

suggested  in  open  court  that  C.  D.,  defendant  in  a  certain  suit 

therein  pending,  numbered on  the  docket  of  said  court,  wherein 

A.  B.  is  plaintiff,  has  departed  this  life;  and  it  was  ordered  by  said 
court  that  a  writ  of  scire  facias  do  issue  to  the  representatives  of 
the  said  C.  D.,  when  known ;  and  it  appearing  that  E.  F.,  a  citizen 
of  3"our  county,  is  the  administrator  and  representative  of  the  said 
C.  D. :  Therefore,  you  are  hereby  commanded  that  you  summon 

the  said  E.  F.  to  appear  before  the court,  to  be  holden  within 

and  for  said  count}^  of ,  at  the  court-house  thereof  in  the  town 

of  ,  on  the Monday  in  next,  being  the day  of 

,  A.  D.  18 — ,  then  and  there  to  show  cause,  if  any  he  has,  why 

he  shall  not  be  made  a  party  defendant  to  said  suit. 

Herein  fail  not,  but  of  this  writ,  and  how  you  have  executed  the 
same,  make  due  return  according  to  law,  on  the  first  day  of  the 
next  term  of  said  court. 

Witness ,  clerk  of  the coui't  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this  the day  of ,  A.  D.  18 — . 

[Z.  ^l]  W.  F., 

Clerk  of Court  of County. 

Issued  on  the day  of ,  A.  D.  18 — . 

AV.  F., 
Clerk  of Court  of County. 

Where  the  plaintiff  dies,  and  no  appearance  and  suggestion  are  made  by  the 
administrator  or  heir  at  the  first  term  of  the  court  thereafter,  it  is  the  duty  of 
the  clerk  to  issue  a  scire  facias  in  the  above'  form,  for  the  executor,  adminis- 
trator or  heir,  on  the  application  of  the  defendant.  See  1  Tex.  Civ.  Prac,  §  316; 
R.  S.  1247.    The  above  form  may  be  used  where  a  female  defendant  marries. 

No.  33. 
Order  to  Maize  an  Administrator  a  Party. 

day  of ,  A.  D.  IS—. 

And  now  comes  the  said  A.  B.,  by  his  attorney,  and  it  appearing 
to  the  court  now  here  that  the  writ  of  scire  facias  ^io  make  a  party 


WITNESSES.  23 

ilefendant  in  said  cause,  has  been  duly  served  upon  E.  F. ;  and  it 
iip.pcaring  that  the  said  E.  F.  is  the  administrator  [cr  executor']  of 
the  estate  of  the  said  C.  D.,  it  is  therefore  ordered  that  the  said 
suit  do  proceed  against  the  said  E.  F.,  administrator  as  aforesaid. 

The  above  form  will  suggest  the  proper  entry  where  the  heir  is  brought  in, 
or  tlie  representative  of  a  deceased  plaintiff,  or  the  husband  of  a  female  defend- 
ant who  marries  pending  the  suit. 

No.  34. 

Suhpcenafor  Witnesses. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County, 

Greeting: 

You  are  hereb}^  commanded  that  you  summon  E.  F.  to  be  and 

appear  before  the  court,  to  be  holden  within  and  for  the 

county  of ,  at  the  court-house  thereof,  in  the  town  of ,  on 

the  — —  Monda}^  in next,  being  the day  of ,  18 — , 

then  and  there  to  testify  in  behalf  of  the  plaintiff  [or  defendant,  as 
the  case  may  he']  in  a  certain  suit  now  pending  in  our  said  court, 
wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,*  and  that  he  con- 
tinue his  attendance,  from  day  to  day  and  from  term  to  term,  until 
discharged  by  the  court  or  by  the  said  A.  B.  [the  party  summoning 
hiw^. 

Herein  fail  not,  but  have  you  then  and  there  before  said  court 
this  writ,  with  your  return  thereon,  showing  how  you  have  exe- 
cuted the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand,  at  office  in  the  town  of ,  this day 

of ,  A.  D.  18—.  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

No.  35. 

Siibpaina  Duces  Tecum 

At  *  in  Form  No.  34.  insert  the  following  clause:  And  that  he  do 
diligently  and  carefully  search  for,  examine,  inquire  for,  and  bring 
with  him  and  produce,  at  the  time  and  place  aforesaid,  a  certain 
[here  describe  the  instrument  particularly'],  that  it  may  be  inspected 
by  our  said  court. 

Sheriffs  Be  turn. 

Came  to  hand  on  the day  of ,  A.  D.  IS — ,  and  executed 

on  the  same  day  by  reading  this  subpoena  to  the  within-named 
E.  F.  J.  D., 

Sheriff  of County. 

By , 

Deputy  Sheriff. 

The  witness  may  accept  service  by  a  written  memorandum,  signed  by  him 
and  attached  to  the  subpoena.     R.  S.  22G(5. 

The  clerk  is  required  to  issue  a  subpoena  for  any  witness  represented  to 


24  WITNESSES. 

reside  within  the  county  or  to  be  found  therein  at  the  time  of  the  trial.     R  Si 
2264. 

For  the  requisites  of  a  notice  to  a  party  to  produce  papers,  and  the  service  of 
such  notice,  see  1  Tex.  Civ.  Prac,  g§  401,  708. 


No.  36. 

Attachment  against  a  Witness. 

The  State  of  Texas,  To  the  Slieriff  or  any  Constahle  of County, 

Greeting: 

Toil  are  hereby  commanded  that  you  attach  J.  H.  B.,  and  bring 

him  personally  before  oar court,  held  in  and  for  the  county  of 

,  at  the  court-house  thereof,  on  the ■  day  of ,  A.  D.  18 — , 

to  answer  for  certain  contempts  against  said  court  in  not  obeying 
a  writ  of  subpoena  commanding  him  to  appear  at,  etc.,  on,  etc.,  before 
said  court,  to  testify  in  a  suit  there  to  be  tried  between  A.  B.,  plaintiff, 
and  C.  D.,  defendant,  on  the  part  of  the  plaintiff  \or  defendant^ ;  and 
you  are  further  commanded  to  detain  him  in  your  custody  until  he 
shall  be  discharged  by  our  said  court. 

Herein  fail  not,  but  of  this  writ,  and  how  3^ou  have  executed  the 
same,  make  due  return. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this day  of ,  A.  D.  IS — . 

[Z.  S.]  W.  F., 

Clerk  of ■  Court, •  County. 

Issued  this day  of ,  A.  D.  18 — . 


Return  to  the  Foregoing  Attachment 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  at o'clock 

—  M.,  and  I  have  arrested  the  within-naraod  defendant,  as  I  am 
within  commanded,  and  have  him  now  before  the  court. 

Dated  the day  of ,  A.  D.  18 — . 

J.  D., 
Sheriff  of County. 


Bcturn  ivlien  the  Witness  is  SicTi. 

Came  to  hand  on  the  — ■. —  day  of ,  A.  D.  18 — ,  at o'clock 

—  M. 

At  the  delivery  of  the  within  attachment  to  me  for  execution, 
the  within-nameci  defendant  then  was,  and  still  continues,  so  sick 
and  unwell  that  it  would  be  dangerous  to  bring  him  before  the 
court  here,  as  I  am  within  commanded;  wherefore  I  have  not  the 


"     DEPOSITIOXS.  2S 

body  of  the  said  defendant  before  the  court  now  here,  according  to 
the  command  of  the  within  attachment. 

Dated  the day  of ,  A.  D.  18—. 

J.  D., 
Sheriff  of County. 

A  fine  will  not  be  imposed  upon  a  witness  for  non-attendance,  nor  will  an  at- 
tachment issue  to  compel  his  attendance,  until  it  be  shown  to  the  court,  by  a(ii- 
davit  of  the  party,  his  agent  or  attorney,  that  the  lawful  fees  have  been  paid  or 
tendered  to  such  witness.    R.  S.  2267;  1  Tex.  Civ.  Prac,  g§  369,  370. 

No.  37. 

Notice  of  Filing  Interrogatories. 

In  the Court  of County. 

Sir:  You  will  take  notice  that  five  days  after  the  service  hereof 

I  shall  apply  to  the  clerk  of  the court  in  and  for county 

for  a  commission  to  take  the  depositions  of ,  who  resides 

[or  who  is  to  he  fou7icr\  in ,  in  answer  to  the  interrogatories  at- 
tached hereto,  to  be  read  as  evidence  in  behalf  of  the  plaintiff  on 

the  trial  of  said  cause.  •, 

Attorney  for  Plaintiff. 

To  C.  D.,  defendant,  or  A.  L.,  Esq.,  his  attorney  of  record. 

Interrogatories  to  be  propounded  to  A.  L.,  a  witness  for  the 
plaintiff: 

Int.  1st.— 

The  above  must  be  filed  with  the  clerk  of  the  court,  and  a  copy  thereof,  and 
of  the  attached  interrogatories,  must  be  served  upon  the  adverse  party,  or  his 
attorney  of  record,  five  days  before  the  issuance  of  a  commission.     R.  S.  2274. 

Notice  of  filing  interrogatories  is  not  required  before  issuing  a  commission 
to  take  the  answer  of  a  party  to  the  suit.     R.  S.  2294. 

Depositions  may  be  taken  whether  the  witness  resides  in  the  county  where 
the  suit  is  pending  or  out  of  it.    R.  S.  2273.    See  1  Tex.  Civ.  Prac,  §  377. 

No.  38. 
Precejyt  to  Serve  Notice  of  Interrogatories. 

A.  B.  ) 

IS'o.  — .     V.      J-  In  the  — ^ —  Court  of Countv,  Texas. 

CD.) 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County y. 

Greeting: 

You  are  hereby  commanded  that  you  serve ,  the 

in  the  above-stated  cause,  or ^ ,  Esq.,  attorney  of  record, 

with  the  accompanying  certified  copy  of  notice  and  interrogatories 

propounded  by  tlie  in  said  cause,  to ,  who  resides 

\or  is  to  he  found]  in  the  county  of ,  in  the  state  of . 


26  DEPOSITIONS. 

Herein  fail  not,  but  of  this  writ,  and  how  you  have  executed  the 
same,  make  due  return  within  five  days  after  service. 

AVitness ,  clerlv  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this  the day  of ,  A.  D.  18 — . 

[Z.  S.]  W.  F., 

Clerk Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

Officer's  Beturn. 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  and  executed 

<3n  the  same  day  by  delivering  to  the  within-named the 

accompanying  certified  copy  of  notice  and  interrogatories  and  a 
true  copy  of  this  writ.  J.  D., 

Sheriff  of County. 

When  the  adverse  party  is  a  corporation  or  a  joint-stock  association,  service 
may  be  made  upon  the  president,  secretary  or  treasurer,  or  upon  the  local  agent 
representing  the  company  in  the  county  in  which  the  suit  is  pending,  or  by 
leaving  a  copy  of  the  notice  and  attached  interrogatories  at  the  principal  office 
of  the  company  during  business  hours.    E.  S.  2274 

No.  39. 

Affidavit  for  Service  of  Notice  of  Interrogatories  hy  Publication. 

A.  B.  ) 

'No.  — .     V.      j-  In Court  of County. 

CD.) 

Before  the  undersigned  authority  personally  appeared  A.  B., 
plaintiff  in  the  above-entitled  suit,  who,  being  duly  sworn,  says  that 
C.  D.,  defendant  tlierein,  is  without  the  limits  of  the  state  of  Texas 
and  not  within  the  jurisdiction  of  this  court  [or  cannot  he  found], 
so  that  notice  and  copy  of  interrogatories  cannot  be  served  upon 
him  for  the  purpose  of  taking  depositions,  and  that  the  said  C.  D. 
has  no  attorney  of  record  [or  state  that  the  said  G.  D.  has  deceased 
since  the  commencement  of  the  suit.,  and  that  his  death  was  suggested 
at  a  prior  term  of  the  court',  or  that  he  has  deceased.^  and  that  all  the 
jpersons  entitled  to  claim  hy  or  through  him  have  not  made  themselves 
parties  to  the  suit.,  and  are  unknown'].  Wherefore  he  prays  that 
notice  of  the  filing  of  the  attached  interrogatories  may  be  given  by 
publication.  A.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court  of County. 

The  above,  with  the  attached  interrogatories,  must  be  filed  in  court,  and  the 
clerk  will  cause  a  notice  to  be  published.  R.  S.  2275;  1  Tex.  Civ.  Prac,  §379. 
As  to  the  method  of  service  where  service  of  process  has  been  made  by  publica- 
tion and  the  defendant  has  not  answered,  see  R.  S.  2276;  1  Tex.  Civ.  Prac,  §  379. 


DEPOSITIONS.  27 

No.  40. 

Frecept  to  Serve  Notice  of  Interrogatories  hy  Puhlication. 

The  State  of  Texas,  Tofhe  Sheriff  or  any  ConstaUe  of County, 

Greeting: 

You  are  herebv  commanded  that  you  cause  to  be  published  in 
some  newspaper  i'or  thirty  davs  the  following  notice: 
A.  B.  ) 

No.  — .    V.      V  In Court  of County,  Texas. 

CD.) 
To  all  persons  interested  in  the  above-entitled  suit: 

Notice  is  herel)y  given  that  A.  13.,  plaintiff,  has  filed  interroga- 
tories in  a  certain  suit  pending  in  the court  of county, 

Texas,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  No. , 

to ,  who  resides  in ,  the  answers  to  which  will  be  read 

in  evidence  on  the  trial  of  said  cause;  and  has  also  filed  an  affidavit 
in  said  suit  [here  state  the  substance  of  the  aJfidavW] ;  and  that  a  com- 
mission will  issue  on  or  after  the  thirtieth  day  after  the  publication 
of  this  notice  to  take  the  deposition  of  said  witness. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this  the dav  of ,  A.  D.  IS — . 

[Z.  S.-]  "  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  IS — . 

Officers  Return. 

Came  to  hand  on  the  day  of  ,   A.  D.  IS — ,  at 

o'clock  —  M.,  and  executed  by  making  publication  thereof  in  the 

,  a  newspaper  ])ublished  in  the  city  of ,  for  thirty  days, 

to  wit  [lie re  state  the  days  of  the  nionth~\.  J.  D., 

Sheriff  of County. 

No.  41. 

Commission  to  Take  Testimony. 

The  State  of  Texas,  To  any  Clerk  of  the  District  Court.,  or  any 
Judge  or  Clerk  of  the  County  Court,  or  any  Notary  Puhlic,  of 
County,  in  said  State,   Greeting:  [If  the  witness  be  al- 
leged to  reside  without  the  state,  see  note  below.] 
You  are  hereby  authorized  and  required  to  summon  before  you 

forthwith ,  resident  of  your  county,  and  his  answers  to  take 

to  the  accompanying  interrogatories  \_and  cross-interrogatories'],  pro- 
pounded to ,  in  a  certain  cause  now  pending  in  the 

court  of  county,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  de- 
fendant; and  having  reduced  the  said  answers  to  writing,  you  will 
cause  the  said  Avitness  to  swear  to  and  subscribe  them  before  you, 


28  DEPOSITIONS. 

to  which  you  will  certify  officially;  after  which  you  will  seal  up 
said  answers  and  interrogatories  [ajirl  cross-interrogatoines,  if  any\ 
together  with  this  commission,  in  a  package  directed  to  the  clerk 
of  the court  aforesaid,  and  return  the  same  to  this  court,  con- 
forming in  all  respects  to  the  requirements  of  the  statute  in  such 
cases  made  and  provided. 

Witness ,  clerk  of  the court  of  county,  and 

the  seal  of  said  court,  at  office  in  the  town  of  ,  this  the 

day  of  ,  A.  D.  18—.  W.  F., 

[Z.  /S'.]  Clerk  of Court, County. 

Issued  this dav  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of  Court, County. 

If  the  witness  is  alleged  to  reside  or  be  without  the  state  and  within  the 
United  States,  address  the  commission  to  any  court  of  record  having  a  seal, 
any  notary  public,  or  any  commissioner  of  deeds  duly  appointed  under  the  laws 
of  the  state  of  Texas,  within  such  other  state  or  territory. 

If  the  witness  is  alleged  to  reside  or  be  withovit  the  United  States,  address  it 
to  any  notary  public,  or  any  minister,  commissioner,  or  charge  d'  affaires  of  the 
United  States,  resident  in  and  accredited  to  the  country  where  the  deposition 
is  to  be  taken,  or  to  any  consul-general,  consul,  vice-consul,  commercial  agent, 
deputy  consul  or  consular  agent  of  the  United  States,  resident  in  such  country. 
E.  S.  2281. 

Cross-interrogatories  may  be  filed  at  any  time  before  the  commission  issues, 
and  a  copy  of  the  same  must  accompany  the  direct  interrogatories,  to  be  an- 
swered and  returned  therewith.    R.  S.  3278. 


No.  42. 

Instructions  to  the  Commissioner. 

1st.  The  following  caption  to  the  answers  of  the  witnesses  should 

be  used,  viz. : 

A  B  ) 
•XT  ■     ■  (  Suit  pending  in  the  Court  of  County, 

Answers  and  depositions  of  [here  give  the  name  and  vesideiice  of 
the  'witness  or  witnesses']  to  the  accompanying  interrogatories,  pro- 
pounded to  [Iiim,  her  or  them]  in  the  above-entitled  cause,  taken 
before  [here  give  the  name  and  ojficial  character  of  the  commissioner], 
in  accordance  with  the  accompanying  commission. 

Answers  of  tlie  Witness  JE.  F. 

To  the  first  interrogatory  he  answers,  etc. 

2d.  The  answers  of  the  witness,  having  been  reduced  to  writin^^ 
must  be  signed  and  sworn  to  by  him,  or  he  may  be  sworn  before  his 
answers  are  taken.     After  all  the  witnesses  (if  more  than  one)  have 


DKi'osnioxs.  29 

answered,  the  commissioner  must  make  the  f(jllo\ving-  certificate, 

viz. : 

State  of ,        ) 

County  of .  f 

I  [here  give  the  name  and  official  character  of  the  coiiirnhf<ioncr''\  do 
liereby  certify  that  the  foregoing  answers  of  A.  I>.,  etc.,  the  witness 
before  named,  were  made  before  me,  and  were  sworn  to  and  sub- 
scribed before  me,  by  the  said  witness  \or  viltnesse^^  veKpeclh^et ij\ 
on  the day  of ,  A.  D.  IS—. 

Given  under  my  band  and  official  seal,  this  the dav  of . 

A.  D.  IS—.  ^, 

[Z.  aS'.]  Clerk,  etc. 

3d.  The  commission,  interrogatories,  cross-interrogatories,  if  any, 
and  the  ansAvers  must  be  sealed'  u|)  in  an  envelope,  and  the  commis- 
sioner will  write  his  name  across  the  seal  and  make  the  following' 
indorsement  on  the  package,  viz, : 
A.  B.   ) 

^'-    r 

C.  D.  ) 

Depositions  of  \iiaraes  of  witnesses]. 

4th.  Address  the  package  to  the  clerk  of  the court  of 

•county,  Texas  [the  court  from  which  the  commission  issued]. 

5th.  Depositions  may  be  returned  to  the  court  either  by  mail,  by 
a  party  interested  in  taking  them,  or  by  any  other  person. 

If  sent  by  mail,  the  postmaster  or  his  deputy  mailing  them  must 
indorse  on  the  package  that  he  received  it  from  the  hands  of  the 
officer  before  whom  the  depositions  were  taken ;  and  the  clerk,  on 
taking  them  from  the  postoffice,  must  indorse  on  the  package  that 
he  received  it  from  the  postoffice,  and  sign  his  name  thereto. 

If  sent  otherwise  than  by  mail,  the  person  delivering  them  into 
court  must  make  affidavit  before  the  clerk  that  he  received  them 
from  the  hands  of  the  officer  before  whom  they  were  taken,  that 
they  have  not  been  out  of  his  possession  since,  and  that  they  have 
undergone  no  alteration. 

6th.  Where  the  depositions  are  taken  within  the  state,  the  officer 
may  issue  a  subpoena  for  the  witness,  addressed  to  the  sheriff  or 
any, constable  of  the  county.  The  officer  may  attach,  line  and  im- 
prison the  witness  for  failure  to  obey  the  subpoena,  or  for  refusing 
to  answer. 

Tth.  In  taking  the  deposition  of  a  party  to  the  suit,  a  commission 
is  issued,  and  must  be  executed  and  returned  by  any  authorized 
officer  as  in  other  cases.  If  the  party  interrogated  refuses  to  an- 
swer, the  officer  certifies  such  refusal,  and  any  interrogatory  which 
the  party  refuses  to  answer,  or  which  he  answers  evasively,  is  taken 
as  confessed.  The  officer's  certificate  is  not  conclusive.  See  1  Tex. 
Civ.  Prac,  §  396. 


30  CHANGE    OF    VEXUE. 

No.  43. 
Consent  of  Parties  to  Change  of  Venue. 

In  the Court, County. 

Xow  come  the  said  parties  by  their  attorneys  and  consent  that 

the  above-entitled  cause  may  be  removed  to  the court  of 

county  for  trial  [a  court  of  any  other  county  having  jurisdiction  of 

the  subject-matter']. , 

Attorney  for  Plaintijff. 


Attorney  for  Defendant. 
The  above  must  be  filed  with  the  papers  of  the  cause.    R.  S.  1270. 

No.  44. 

Application  for  Change  of  Venue. 

In  the Court  of County. 

ISTow  comes  C.  D.,  the  defendant  in  the  above-entitled  cause,  and, 
being  sworn,  states  that  there  exists  in  this  county  so  great  a  prej- 
udice against  him  that  he  cannot  obtain  a  fair  and  impartial  trial 
[or  that  there  is  a  cambination  against  hiin^  etc.^  or  other  cause.,  ac- 
cording to  the  statute] ;  that  the  county  of  [the  county  whose 

court-house  is  nearest]  is  subject  to  the  objection  that  [state  some  ob- 
jection sufficient  to  authorize  a  change  of  venue^  if  there  be  any]. 
Wherefore  he  prays  the  court  to  change  the  venue  of  this  cause  to 
a  county  that  is  free  from  such  objections.  C.  D. 

Sworn  to  and  subscribed  before  me  this dav  of ,  A.  D. 

IS—.  W.  R, 

Clerk  of Court, County. 

Supporting  Affidavit. 


In  the Court  of  County. 

E.  F.,  Gr.  H.  and  J.  K.,  each,  being  duly  sworn,  for  himself  states 
that  he  has  seen  and  read  the  foregoing  affidavit  made  by  C.  D. 
for  a  change  of  the  venue  of  the  above-entitled  cause;  that  he  is  a 
resident  of  the  county  of ,  and  is  acquainted  Avith  the  said  C.  D. ; 


CHANGE    OF    VENUE CONTINUANCE.  31 

that  he  believes  that  the  grounds  for  a  change  of  venue  stated  in 
said  affidavit  are  true  and  that  they  do  in  fact  exist. 

E.  F. 
G.  H. 
J.  K. 
Sworn  to  and  subscribed  before  me,  by  the  said  E.  F.,  G.  H.  and 

J.  K.,  respectiveh^,  this day  of ,  A.  J).  18 — . 

W.  F., 
Clerk  of Court, County. 

The  credibility  of  the  persons  making  the  application,  or  their  means  of 
knowledge,  or  the  truth  of  the  facts  stated,  may  be  attacked  by  affidavit;  and 
the  issue  thus  made  will  be  tried  by  the  judge.    R.  S.  1273. 


No.  45. 

Order  for  Change  of  Venue. 

No.  — .     v.      }  ss.     day  of ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorney's,  and  then  came  on 
to  be  heard  the  motion  for  a  change  of  venue,  now  here  made  by 
the  said  defendant;  and  the  affidavit  in  support  thereof  bemg  read^ 
and  the  argument  of  counsel  being  heard,  it  is  ordered  by  the  court 
that  the  venue  of  the  above-entitled  cause  be  changed  to  the  county 

of ,  and  that  the  clerk  of  this  court  transmit  to  the  clerk  of 

the  court  in    and  for  the  said  county  of  •  the  original 

papers  in  this  cause,  and  a  transcript  of  all  the  proceedings  had 
therein. 

The  clerk  must  make  out  immediately  a  correct  transcript  of  all  the  orders 
made  in  the  cause,  certifying  officially  thereto  under  the  seal  of  the  court,  .and 
transmit  the  same,  with  the  original  papers  in  the  cause,  to  the  clerk  of  the 
court  to  which  the  venue  has  been  changed.     R.  S.  1275. 

As  to  the  time  within  which  the  application  must  be  made,  see  1  Tex.  Civ. 
Prac,  §  345. 

No.  46. 

First  Aiyplication  for  a  Continuance,  on  Account  of  Adsent  Tes- 
timony. 
A.  B.   ) 

Ko.  — .     V.      V  In  the Court  of County. 

C.  D.  ) 
Now  comes  A.  B.,  plaintiff  in  the  above-entitled  cause,  and,  being 
duly  sworn,  states  that  he  cannot  safely  go  to  trial  at  this  term  of 
court,  on  account  of  the  absence  of  E.  F.,  who  is  a  witness  on  be- 
half of  the  plaintiff;  that  the  testimony  of  said  witness  is  material^ 
and  that  he  has  used  due  diligence  to  procure  the  same  by  causing 
a  subpoena  to  issue,  etc.  [stoJe  full;/  and  lyarticxdarly  the  facts  sup- 
posed to  show  due  diligence] ;  that  this  is  his  lirst  a[)plication  for  a 


52  CONTINUANCE. 

continuance.     "Wherefore  he  prays  the  court  to  continue  this  cause 
to  the  next  term  of  court.                                                            A.  B, 
Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18-.  W.  F.; 

Clerk  of  — —  Court, County. 

The  above  contains  all  the  allegations  required  by  the  statute.  R  S.  1277. 
As  to  the  acts  necessary  to  constitute  due  diligence,  see  1  Tex.  Civ.  Prac, 
^g  414-434. 

An  application  for  a  continuance  will  not  be  heard  before  the  defendant  files 
his  defense;  it  may  be  granted  by  consent  of  parties.    R  S.  1276. 

No.  47. 

Second  or  Subsequent  Ai)iMcation  for  a  Continuance. 


ISTo.  — .     V.      [  In  the Court  of County. 


'Now  comes  A.  B.,  plaintiff  in  the  above-entitled  cause,  and  makes 
this  his  second  application  for  a  continuance,  and,  being  duly 
sworn,  says  that  he  cannot  safely  go  to  trial  on  account  of  the  ab- 
sence of  E.  F.,  who  is  a  witness  on  behalf  of  the  plaintiff;  that  the 
testimony  of  said  witness  is  material  [state  facts  showing  it  to  he 
material]',  that  he  has  used  due  diligence  to  procure  the  testimony 
of  said  witness  [stating  facts  showing  due  diligence,  and  the  cause 
offaihire,  if'known'\\  that  the  testimony  which  said  witness  would 
give,  if  present,  cannot  be  obtained  from  any  other  source;  that 

said  witness  resides  in  county,  Texas,  and  affiant  expects  to 

prove  by  said  witness  that  [state  what  plaintiff  expects  to  prove  hj 
]d7n~\ ;  and  that  a  continuance  is  not  sought  for  delay  only,  but  that 
justice  may  be  done.  AVherefore  plaintiff  prays  the  court  to  con- 
tinue this  cause  to  the  next  term  of  court.  A.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

The  above  contains  the  allegations  prescribed  by  statute.  R  S.  1278.  What 
•will  amount  to  due  diligence  in  issuing  subpoenas,  taking  depositions,  procuring 
attachments  for  witnesses,  etc.,  will  depend  upon  the  circumstances  of  each 
case.  Of  course  there  are  other  grounds  of  coiltinuance,  such  as  surprise,  ab- 
sence of  counsel,  etc.     See  1  Tex.  Civ.  Prac,  p.  389. 

It  is  said  that  counter-affidavits  will  be  received  on  a  second  or  subsequent 
application;  and  the  adverse  party  may  avoid  a  continuance  by  admitting  the 
facts  proposed  to  be  proved  by  the  absent  witness.    1  Tex.  Civ.  Prac,  gg  430,  431. 


A.  B. 

No.  — .     v. 
CD. 


No.  48. 
Order  fo r  Con  tinua nee. 


to 


This  day  came  the  parties  by  their  attorneys,  and  then  came  on 
be  heard  the  motion  for  a  continuance,  now  here  made  by  the 


ORIGIXAL    ATTACHMENT.  33 

said  plaintiff;  and  the  affidavit  in  support  thereof  being  read,  it  is 
ordered  by  the  court  that  this  cause  be  continued  until  the  next 
term  of  this  court. 

No.  49. 
Affidavit  for  Writ  of  Original  Attachment. 


'N'o.  — .     V.      >•  In  the Court, County. 


A.  B.,  plaintiff  [or  K  F.^  agent  or  attorney  of  the  plaintiff '\  in  the 
above-entitled  cause,  being  duly  sworn,  says  that  the  defendant, 

C.  D.,  is  justly  indebted  to  him  "in  the  sum  of dollars  and 

cents ;  that  the  said  C.  D,  is  not  a  resident  of  this  state  [stating  one 
or  more  of  the  statutory  grounds'];  that  this  attachment  is  not  sued 
out  for  the  purpose  of  injuring  or  harassing  the  said  C.  D.,  and  that 
plaintiff  will  probably  lose  his  debt  unless  an  attachment  is  issued. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

IS-.  W.  F., 

Clerk  of Court, County. 

The  affidavit  must  be  filed  with  the  papers  of  the  cause.  It  may  be  attached 
to  the  petition,  or  it  will  be  sufficient  to  allege  and  swear  to  the  necessary  facts 
in  the  petition.  3  Tex.  Civ.  Prac,  §  787.  As  to  the  requisites  of  the  affidavit, 
and  the  manner  of  stating  the  statutory  grounds,  see  3  Tex.  Civ.  Prac,  §§  783- 
787. 

If  the  debt  is  not  due,  it  should  be  so  stated,  and  when  it  will  become  due. 
2  Tex.  Civ.  Prac,  §  780. 

No.  50. 

Bond  for  Attacliment. 

In  the Court  of County. 

We,  the  undersigned,  A.  B.  as  principal,  and and 

as  sureties,  acknowledge  ourselves  bound  to  pay  to  C.  D.  the 

sum  of dollars  [not  less  than  double  the  amount  sworn  to  he  due], 

conditioned  that  the  above  bound  A.  B.,  plaintiff  in  attachment, 
against  the  said  C.  D.,  defendant,  will  prosecute  his  said  suit  to 
effect,  and  that  he  will  pay  all  such  damages  and  costs  as  shall  be 
adjudged  against  him  for  wrongfully  suing  out  such  attachment. 

Witness  our  hands  this dav  of ,  A.  D.  18 — .        A.  B. 

E.  F. 
G.  H. 

Approved  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

The  above  form  is  prescribed  by  the  statute.  Neither  the  bond  nor  the  affi- 
■davit  will  be  held  void  for  want  of  form,  provided  they  contain  all  essential 
matters.    R.  S.  193. 

The  bond  must  be  in  a  sum  not  less  than  double  the  amount  sworn  to  be  due, 
3 


34  ORIGINAL   ATTACHMENT. 

and  must  be  conditioned  for  the  payment  of  costs  as  well  as  damages.  R.  S. 
190;  2  Tex,  Civ.  Prac,  §  789.  It  must  be  filed  with  the  papers  of  the  cause.  R.  &. 
191.  As  to  the  sureties,  and  the  requisites  of  a  bond  by  or  to  a  partnership,  see 
2  Tex.  Civ.  Prac,  §§  790,  791. 


No.  51. 

Writ  of  Attachment. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of  — —  County, 
Oreeting: 
We  command  you  that  you  attach  forthwith  so  much  of  the 
property  of  C.  D.,  if  to  be  found  in  your  county,  repleviable  on  se- 
curity, as  shall  be  of  value  sufficient  to  make  the  sum  of dol- 
lars and  the  probable  costs  of  suit,  to  satisfy  the  demand  of  A.  B., 
and  that  you  keep  and  secure  in  your  hands  the  property  so  at- 
tached, unless  replevied,  that  the  same  may  be  liable  to'  further  pro- 
ceedings thereon,  to  be  had  before  our  court  in ,  in  the  county 

of ■;  on  the day  of ,  18 — ,  when  and  where  you  shall 

make  known  how  you  have  executed  this  writ. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  officein ^ 

this  the day  of ,  A.  D.  18 — . 

[Z.  S.-]  W.  R, 

Clerk  of Court, County. 

Issued  on  the day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 


The  writ  will  not  issue  until  the  suit  has  been  duly  instituted.  It  may  be  is- 
sued at  any  time  during  the  progress  of  the  suit.  R.  S.  188.  It  may  bo  levied 
on  any  property  subject  to  execution,  and  is  levied  the  same  as  an  execution  is 
levied.    R.  S.  200,  201;  2  Tex.  Civ.  Prac,  t5§  797,  1246-1261. 

Several  writs  may  be  issued  at  the  same  time,  or  in  succession,  and  sent  ta 
different  counties,  until  sufficient  property  shall  have  been  attached  to  satisfy 
the  demand,    R.  S.  195;  2  Tex.  Civ.  Prac,  §  792,  and  note. 

Officer^s  Indorsement,  and  Return  of  Levy  on  Personal  Property. 
Came  to  hand  on  the  day  of  ,  A.  D.  18 — ,  at 


o'clock  —  M.,  and  executed  on  the day  of -,  A.  D.  18 — ,  by 

levying  upon  the  following  described  personal  property  belonging 
to  the  within  named  defendant,  to  wit  [describe  the  property^, 
which  said  property  now  remains  in  my  hands  [or  if  the  property 
has  been  claimed,  or  replevied,  or  otherwise  disposed  of,  or  any  part 
thereof,  so  state,  according  to  thefacts\. 

J.  D., 
Sheriff  of County. 

Where  the  officer  takes  possession  of  the  property,  as  he  must  in  all  cases 
where  tlie  defendant  is  entitled  to  the  possession,  except  in  case  of  a  "range 


ORIGINAL    ATTACHMENT,  60 

levy,"  it  is  probably  sufficient  for  him  to  say  that  he  levied,  simply.  If  he  levies 
by  giving  notice,  he  probably  ought  to  so  state,  and  this  will  show  the  disposi- 
tion made  of  the  property.    3  Tex.  Civ.  Prac,  §§  796,  802,  806. 

Return  of  Levy  on  Heal  Estate. 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  at o'clock 

—  M.,  and  executed  on  the day  of ,  A.  D.  18 — ,  at 

o'clock  —  M.,  by  levying  upon  all  the  right,  title  and  interest  of 
,  the  within  named  defendant,  in  and  to  the  following  de- 
scribed tract  [or  tracti\  of  land,  to  wit:  \_Describe  the  jyroperty  so 
as  to  identify  it^^  J.  D., 

Sheriff  of County. 

The  officer  need  not  go  upon  the  land  to  make  the  levy.  The  levy  is  made  by 
the  indorsement  on  the  writ,  and  the  lien  of  the  attachment  dates  from  the 
time  of  making  the  indorsement.     2  Tex.  Civ.  Prac,  §  801. 

The  officer  must  file  a  copy  of  the  writ,  and  of  his  return  thereon,  with  the 
proper  county  clerk  for  registration.     R.  S.  4GG9;  2  Tex.  Civ.  Prac,  §  814. 

lieport  of  Disposition  oj  Personal  Property  after  Return  of  Writ 

To ,  Clerk  of Court  of County: 

Be  it  known  that  since  the  return  of  the  writ  of  attachment  is- 
sued out  of  the court  of  county,  in  suit  numbered , 

wherein is  plaintiff  and is  defendant,  the  pro])- 

erty  described  in  my  return  as  having  been  levied  upon  has  been 
replevied  by  the  said  defendant  [or  has  been  sold  hy  me  pursuant 
to  an  order  of  court,  and  the  proceeds  of  said  sale  remain  in  my 
hands;  or,  and  the  proceeds  of  said  sale  have  heen  replevied  hy  the 

defendant;  or,  loas  delivered  by  me  to ,  07i  the day  of 

,  A.  I).  IS — ,  on  claim  made  by  him  pursuant  to  the  statute^ 

J.  D., 
Sheriff  of County. 

The  above  report  must  be  filed  with  the  papers  of  the  cause.  R.  S.  212;  2 
Tex.  Civ.  Prac,  §  807. 

Where  perishable  property  is  sold  by  order  of  court,  the  proceeds  must  be 
paid  to  the  clerk  within  five  days  after  the  sale.    See  R.  S.  208. 

No.  52. 
Bond  of  Indemnity  upon  Levying  an  Attacliment. 

A.  B.  )  . 

Ko.  — .     V.      V 
CD.) 
"Whereas,  a  writ  of  attachment  has  been  issued  in  an  action  pend- 
ing in  the court  in  and  for  the  county  of ,  in  favor  of  the 

above-named  plaintiff,  against  the  said  CD.  as  defendant,  which, 
by  the  direction  of  the  plaintiff,  has  been  levied  by ,  sher- 
iff of county,  upon  certain  goods  and  chattels,  viz.  [Jiere  insert 


36  ORIGINAL    ATTACHMENT. 

descriptiori]  {or  which  the  said  plaintiff  has  directed ,  sher- 
iff of county^  to  levy  upon  certain  goods  and  chattels^  vis.'] :  Now, 

therefore,  in  consideration  that  the  said ,  as  sheriff,  has 

levied  [or  shall  levy']  said  attachment  upon  the  above-described  prop- 
erty, we,  A.  B.  as  principal,  and  M.  N".  and  O.  P.  as  sureties,  ac- 
knowledge ourselves  bound  to  pay  to ,  sheriff  as  afore- 
said, the  sum  of  dollars,  conditioned  that  the  above-bound 

A.  B.  shall  well  and  sufficiently  indemnify,  save  and  keep  harmless 
the  said ,  sheriff  as  aforesaid,  from  all  costs,  charges,  dam- 
ages and  suits  that  he  may  incur  or  become  liable  to  in  conse- 
quence of  the  levy  of  said  attachment;  and  shall  pay  off,  discharge 
and  cancel  all  judgments,  damages  and  costs  that  may  be  rendered 

against  said by  reason  of  said  levy. 

Witness  our  hands  this 


day  of  — 

— ,  A.  D.  18—. 

A.  B. 

M.  K 
0.  P. 

See  2  Tex.  Civ.  Prac,  §  805. 

No.  53. 

Replevy  Bond  by  the  Defendant  in  Attachment. 

A.  B.  ) 

No.—.     V.      [ 
CD.) 
Whereas,  by  virtue  of  a  writ  of  attachment,  issued  out  of  the 
court  in  and  for  the  county  of ,  against  C.  D.,  at  the  suit 


of  A.  B.,  bearing  date  the day  of ,  A.  D.  18 — , 

sheriff  of  the  county  of ,  has  seized  and  taken  the  following 

property  in  the  possession  of  the  said  C.  D.,  viz.  [here  insert  a  de- 
scription of  the  property  seized  and  taTce7i\  and  which  by  the  said 

sheriff  has  been  appraised  at dollars,  and  has  been  permitted 

to  remain  in  the  hands  of  the  said  C.  D, :  Now,  therefore,  we,  C.  D. 
as  principal,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge  our- 
selves bound  to  pay  to  A.  B.,  plaintiff  in  said  attachment,  the  sum- 

of dollars  [double  the  amount  of  the  plaintiff '' s  debt,  or,  at  the 

defendant's  option^  for  the  value  of  the  'property  replevied^  to  he  esti- 
mated by  the  offcer\  conditioned  that  should  the.  said  C.  D.  be  con- 
demned in  said  action  he  shall  satisfy  the  judgment  which  may  be 
rendered  therein,  or  shall  pay  the  estimated  value  of  the  property, 
with  lawful  interest  thereon,  from  the  date  of  this  bond. 
Witness  our  hands  this 


Approved  this  day  of 


of         ,  A.  D.  18     . 

CD. 

M.N, 

0.  P. 

A.  D.  18—. 

J.  D., 

Sheriff  of           < 

County. 

The  above  bond  must  be  filed  among  the  papers  of  the  cause.    R.  S.  311. 
Where  property  has  been  sold  pending  the  proceeding,  the  defendant  may  re- 


ORIGINAL   ATTACHMENT.  37 

plevy  the  proceeds  of  sale,  by  giving  a  bond  conditioned  as  above,  and  in  a  sum 
double  the  amount  of  money  arising  from  the  sale.    R.  S.  216. 

There  is  now  no  provision  for  special  bail,  nor  for  a  replevy  by  the  plaintiff. 


No.  54. 

Application  for  Sale  of  Perishable  Property  Seised  Vmler  Attach- 
ment. 

la  the Court, County. 

And  now  comes  the  said  A.  B.  [or  other  party  interested,  includ- 
ing the  officer\  by  his  attorney,  and  shows  that  the  personal  property, 

to  wit, bushels  of  corn,  heretofore  seized  by ,  sheriff 

of county,  under  and  by  virtue  of  a  writ  of  attachment  issued 

in  said  cause,  is  in  danger  of  serious  waste  and  decay  [or,  is  of  such 
a  nature  that  the  keeping  of  the  same  until  the  trial  toill  necessarily 
he  attended  with  such  expense  {or  deterioration  in  value,  or  hoth)  as 
greatly  to  lessen  the  amount  likely  to  he  realized  therefroni],  and  he 
prays  for  an  order  to  sell  the  same.  A.  B. 

The  judge  may  require  or  dispense  with  notice  to  the  parties,  and  may  act 
upon  such  information,  by  affidavit,  certificate  of  the  attaching  officer,  or  other 
proof  as  may  seem  to  him  necessary  to  protect  the  interests  of  the  parties.  Tlie 
sale  is  to  be  made  as  on  execution,  but  the  time  of  advertisement  may  be  fixed 
by  the  judge  for  a  shorter  period,  according  to  the  exigencies  of  the  case.  R.  S. 
206,  207. 


No.  55. 

Order  of  Sale  of  Perishahle  Property  Seized  Under  Attachment. 

The  State  of  Texas,  To  the  Shei'iffor  any  Constable  of County, 

Greeting: 

Whereas,  A.  B.  has  applied  to  the court  of county  [or,  to 

,  judge  of  the court  of county^  for  and  has  obtained 

an  order  to  sell  certain  personal  property,  to  wit, bushels  of 

corn,  seized  by ,  sheriff  of  county,  on  the day 

of ,  A.  D.  18 — ,  under  and  by  virtue  of  a  writ  of  attachment  is- 
sued in  a  certain  cause  now  pending  in  said  court,  Avherein  A.  B. 
is  plaintiff  and  C.  D.  is  defendant :  Xow,  therefore,  you  are  com- 
manded that  you  proceed,  according  to  law,  and  sell  the  above  de- 
scribed property,  as  under  execution,  first  giving days'  notice 

[to  he  fixed  hy  the  judge']  of  the  time  and  place  ot  sale. 

Herein  fail  not,  and  within  five  days  after  making  said  sale  you 
will  pay  the  proceeds  of  the  same  to  the  clerk  of  said  court,  and 
make  your  report  in  writing,  signed  by  you  otticially,  stating  the 
time  and  place  of  making  said  sale,  the  name  of  the  purchaser,  the 


17yl85 


38  ORIGINAL   ATTACHMENT GARNISHMENT. 

amount  received,  together  with  an  itemized  account  of  the  expenses 
attending  the  sale. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in , 

this  the day  of ,  A.  D.  18 — . 

[Z.  S.-]  W.  F., 

Clerk  of Court, County. 

Issued  on  the day  of ,  A.  D,  18 — . 

W.  F., 
Clerk  of Court, County. 

Officer'' s  Return,  or  Report  of  Sale. 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  at o'clock. 

—  M.,  and  executed  by  selling  the  within-described  personal  prop- 
erty, to  wit, bushels  of  corn,  on  the  day  of ,  A.  I). 

18 — ,  at  the  court-house  door  of county,  to ,  for  the 

sum  of dollars,  that  being  the  highest  sum  bid  for  the  same, 

said  sale  being  made  pursuant  to  written  advertisement,  posted 

for successive  days,  at  three  public  places  in  said  county,  one 

of  which  was  at  the  court-house  door  of  said  county.  And  I  here- 
with pay  the  said  sum  of  dollars  to ,  the  clerk  of 

said  court. 

[Add  itemised  accowit  of  expenses  of  sale.'] 

Sheriff  of County. 

No.  56. 

Application  for  Writ  of  GarnisJiment  in  Aid  of  an  Attachment. 

In  the  — —  Court, County. 

And  now  comes  the  said  A.  B.,  plaintiff  in  the  above-entitled 
cause,  and  makes  application  for  a  writ  of  garnishment  against  one 
E.  F. ;  and,  being  duly  sworn,  says  that  he  has  sued  oat  a  writ  of 
attachment  against  C.  D,,  defendant  in  said  cause;  that  the  said 

E.  F.  is  a  resident  of  the  county  of [op  mai/  now  he  found 

within  the  county  of ],*  and  that  he  has  reason  to  believe,  and 

does  believe,  that  the  said  E.  F.  is  indebted  to  the  said  C.  D.,  or  has 
in  his  hands  effects  belonging  to  the  said  C.  D.  \_If  the  garnishee  is 
an  incorporated  or  joint-stock  company:  state  the  facts,  and  that 
he  has  reason  to  believe,  and  does  believe,  that  the  said  C.  D.  is  the 
owner  of  shares  in  said  company,  or  has  an  interest  therein.] 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

For  the  authority  for  making  the  allegations  as  to  the  fact  of  indebtedness 
or  the  possession  of  effects  in  the  alternative,  see  Carter  Bros.  v.  Wise  County 


GARNISHMENT.  89 

Coal  Co..  2  App.  C.  C,  §  213;  White  v.  Lynch,  26  T.  195;  R.  S.  219,  222.  The  pro- 
cess of  garnishment  is  an  inquisitorial  proceeding,  and  the  form  of  writ  author- 
ized by  the  statute  (art.  222)  makes  a  very  searching  inquiry,  going  even  beyond 
the  allegations  required  to  be  made  in  the  aflSdavit;  but  it  is  held  that  the  stat- 
ute is  not  entitled  to  a  liberal  construction  in  favor  of  the  party  seeking  the 
remedy.     2  Tex.  Civ.  Prac,  §  834 

Of  course  if  the  plaintiff  is  in  doubt,  but  believes  in  the  truth  of  either  one 
or  the  other  of  the  alternatives,  then  the  statement  ought  to  be  made  in  the 
alternative;  if  he  believes  that  the  garnishee  is  both  indebted  and  has  effects, 
the  statement  may  properly  be  made  conjunctively.  It  sometimes  happens,  it 
is  said,  that  an  affidavit  is  bad  which  follows  literally  the  words  of  the  statute 
itself.    Moody  v.  Levy,  58  T.  532;  2  Tex.  Civ.  Prac,  §  785. 


No.  57. 

Application  for  Writ  of  Garnishment  ivliere  Plaintiff  Sues  for  a 
Debt  ivithout  Suing  Out  an  Attachment 

In  the Court, Couatj. 

And  now  comes  the  said  A.  B.,  plaintiff  in  the  above-entitled 
cause,  and  makes  application  for  a  writ  of  garnishment  against  one 
E.  F. ;  and,  being  duly  sworn,  says  that  he  has  instituted  a  suit  for 

debt  against  C.  I).,  defendant  in  said  cause,  in  the court  of 

county,  to  recover  the  sum  of dollars;  that  said  debt  is  just, 

due  and  unpaid,  and  that  the  said  C,  D.  has  not,  within  affiant's 
knowledge,  property  within  his  possession  within  this  state  subject 
to  execution  sufficient  to  satisfy  said  debt;  that  the  garnishment 
applied  for  is  not  sued  out  to  injure  either  the  said  C.  D.  or  the  said 

E.  F. ;  that  the  said  E.  F.  is  a  resident  of county,  and  that  he 

has  reason  to  believe  [following  I^orm  No.  56,  supra,  from  *]. 

A.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

A  bond  is  required  in  this  case.    See  Form  No.  5i),  infra. 


No.  58. 

Application  for  IVrit  of  Garnishment  after  Judgment. 

A.  B.  ) 

v.      "■  In  the Court, County. 

€.  D.  I 

And  now  comes  the  said  A.  B.,  plaintiff  in  the  above-entitled 
cause,  and  makes  application  for  a  writ  of  garnishment  against 
one  E.  F. ;  and,  being  duly  sworn,  says  that  heretofore,  to  wit, 

on  the  day  of ,  A.  D.  IS—,  in  the  court  of 

county,  he  obtained  a  judgment  against  C.  D.,  defendant  in  the 


40  GAUNISHMENT. 

above-entitled  cause,  for  the  sum  of  dollars,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum  from  date,  and 

costs  of  suit,  amounting  to  the  further  sum  of dollars;  that 

said  judgment  remains  wholly  unsatisfied,  and  that  the  said  C.  D. 
has  not,  within  affiant's  knowledge,  property  in  his  possession^ 
within  this  state,  subject  to  execution,  sufficient  to  satisfy  said  judg- 
ment ;  that  the  said  E.  F.  is  a  resident  of county,  and  that 

affiant  has  reason  to  believe,  etc.  {^following  Form  iVo.  56,  from  *]. 

A.  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

No.  59. 

Bond  for  Garnisliment. 
In  the  Court, County. 

Know  all  men  by  these  presents,  that  we,  A.  B.  as  principal,  and 
M.  N.  and  O.  P.  as  sureties,  do  hereby  acknowledge  ourselves  bound 

to  pay  C.  D.  the  sum  of dollars  [double  the  amount  of  the  debt 

claimed  in  the  writ],  conditioned  that  the  above  bound  A.  B.,  plaint- 
iff in  the  above-entitled  cause,  Avho  has  applied  for  a  writ  of  garnish- 
ment in  said  suit  against ,  will  prosecute  his  suit  to  ef- 
fect, and  pay  all  damages  and  costs  that  may  be  adjudged  against 
him  for  wrongfully  suing  out  said  garnishment. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 


A.  B. 
M.  K 
O.P. 


Approved,  etc. 


A  bond  is  required  only  where  the  plaintiff  sues  to  recover  a  debt  without 
suing  out  an  attachment.    R.  S.  218.    See  2  Tex.  Civ.  Prac,  §  828. 

No.  60. 

Writ  of  Garnisliment 

The  State  of  Texas,  To  the  Sheriff  or  any  ConstaUe  of County, 

Greeting: 

Whereas,  in  the court  of county,  in  a  certain  cause 

wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  the  plaintiff, 
claiming  an  indebtedness  against  the  said  C.  D.  of dollars,  be- 
sides interest  and  costs  of  suit,  has  applied  for  a  writ  of  garnish- 
ment against  E.  F.,  who  is  alleged  to  be  a  resident  of  your  county 
[or  to  he  within  your  county,  or  as  the  case  may  he^]',  therefore,  you 
are  hereby  commanded  forthwith  to  summon  the  said  E.  F.,  if  to 
be  found \vithin  your  county,  to  be  and  appear  before  the  said 


GAHNI8HMENT.  4t 

court  at  the  next  term  thereof,  to  be  lield  at ,  in  said  county^ 

on  the day  of ,  18 — ,  then  and  there  to  answer  upon  oath 

what,  if  anything,  he  is  indebted  to  the  said  C.  D.,  and  was  when 
this  writ  was  served  upon  him,  and  what  effects,  if  any,  of  the 
said  C.  D.  he  has  in  his  possession,  and  had  when  this  writ  was 
served,  and  what  other  persons,  if  any,  within  his  knowledge,  are 
indebted  to  the  said  C.  D.,  or  have  effects  belonging  to  him  in  their 
possession  [a7id  if  the  garnishee  he  an  incorporated  or  jointrstoch 
company,  in  which  the  defendant  is  alleged  to  he  the  owner  of  shares 
or  interested  therein,  then  the  writ  shall  proceed:  and  further  to 
answer  what  number  of  shares,  if  any,  the  said  C.  D.  owns  in  sucii 
company,  and  owned  when  this  writ  Avas  served]. 

Herein  fail  not,  but  of  this  writ  make  due  return  as  the  law  di- 
rects. 

"Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this day  of ,  A,  D.  18 — . 

[Z.  S.-\  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A,  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

The  above  form  is  prescribed  by  statute.  R  S,  222.  The  preliminary  state- 
ment is  adapted  to  a  case  in  which  plaintiff  sues  for  a  debt  without  the  aid  of 
an  attachment.  Where  he  sues  out  an  attachment,  or  sues  out  the  writ  after 
judgment,  the  preliminary  statement  may  be  varied  to  suit  the  facts. 

The  writ  must  be  served  forthwith,  by  delivering  a  copj'  to  the  garnishee,  and 
the  officer  must  make  return  thereof  as  of  other  citations.  R.  S.  223, 224;  2  Tex. 
Civ.  Prac,  ^  833.     As  to  service  on  a  corporation,  see  2  Tex.  Civ.  Prac,  §  834. 

Where  the  garnishee  is  a  corporation,  it  would  probably  be  proper  to  name 
the  officer  or  local  agent  on  whom  service  may  be  made,  according  to  the  sug- 
gestion of  the  appellate  courts  in  the  case  of  ordinary  citations.  See  1  Tex.  Civ. 
Prac,  §  283;  also  Forms  for  Citations,  supra. 


No.  61. 

Replevy  Bond  in  Garnishment  Proceedings. 

A.  B.  ) 

Kg.—,    v.      [ 

CD.) 

Whereas,  a  writ  of  garnishment  was  issued  out  of  the court 

of county,  on  the day  of ,  A.  D.  IS — ,  in  a  suit  therein 

pending,  numbered ,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  de- 
fendant, on  the  application  of  the  said  A.  B.,  and  Avas  on  the 

day  of ,  A.  D.  18 — ,  by  the  sheriff  of county,  served  on 

E.  F.,  named  as  garnishee  therein :  Xow,  therefore,  in  order  to  re- 
lease from  the  lien  of  said  writ  any  and  all  debts,  claims,  shares 
and  effects,  if  any,  owing  by  or  in  the  possession  of  the  said  E.  F. 
and  belonging  to  the  said  C.  D.  at  the  date  of  service  of  said  writ. 


42  GARNISHMENT. 

and  which  may  be  owing  by  him  or  shall  come  into  his  possession 
up  to  the  time  of  filing  his  answer  as  garnishee  in  said  case  [or 
lohieh  'became  due,  etc.,  where  the  hond  is  made  after  answer  filed], 
we,  C.  D.  as  principal,  and  M.  N,  and  O.  P.  as  sureties,  acknowledge 

ourselves  bound  to  pay  to  the  said  A.  B.  the  sum  of dollars 

[double  the  amount  of  the  plaintiff'' s  dehf],  conditioned  for  the  pay- 
ment of  any  judgment  that  may  be  rendered  against  the  said  E.  F. 
as  garnishee. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 

CD. 
M.N. 
O.  P. 

Approved  this day  of ,  A.  D.  18 — . 

J.  D., 
Sheriff  of County. 

See  procedure  suggested  in  83  T.  243;  2  Tex.  Civ.  Prac,  p.  832,  note  3.    See, 
also,  2  Tex.  Civ.  Prac,  §§  835,  852. 


No.  62. 

Commission  to  Tahe  Answer  of  a  Garnishee  Residing  in  Another 

County. 

The  State  of  Texas,  To  the  Cleric  of  the  District  Court,  County 
Judge,   Cle7'h  of  the   County  Court,  or  any  Notary  Public,  of 

County,  Greeting: 

Whereas,  on  the day  of ,  A.  D.  18 — ,  in  a  certain  cause 

pending  in  this  court,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  de- 
fendant, the  plaintiff  claiming  an  indebtedness  against  the  said 

C  D.  of  dollars,  besides  interest  and  costs  of  suit,  a  writ  of 

garnishment  was  issued  by  this  court  against  E.  F.,  of  your  county, 

which  was-af  terwards  returned  duly  served  on  the day  of , 

18 — ;  and  whereas  the  said  E.  F.  has  failed  to  make  answer  to  the 
said  writ :  l^ow,  therefore,  you  are  hereby  commanded  forthwith  to 
summon  the  said  E.  F.  before  you  to  answer  upon  oath  what,  if  any- 
thing, he  is  indebted  to  the  said  C.  D.,  and  was  when  the  said  writ 
of  garnishment  was  served  upon  him,  and  what  effects,  if  any,  of 
the  said  C.  D.  he  has  in  his  possession,  and  had  when  the  said  writ 
was  served,  and  what  other  persons,  if  any,  within  his  knowledge, 
are  indebted  to  the  said  C.  D.,  or  have  effects  belonging  to  him  in 
their  possession.  \If  the  garnisliee  be  an  incorporated  or  joint- 
stock  company,  in  which  the  defendant  is  alleged  to  be  the  owner  of 
shares,  or  interested  therein,  the  commission  will  proceed:  and  fur- 
ther to  answer  what  number  of  shares,  if  any,  the  saidC.  D.  owns 
in  such  company,  and  owned  wlien  the  said  writ  was  served,  and 
what  interest,  if  any,  he  has  in  said  company,  and  had  when  the 
said  writ  was  served.] 


GARNISHMKNT.  43 

Herein  fail  not,  but  of  this  commission  make  return  forthwith. 

Witness ,  clerk  of  the  court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this day  of ,  A.  J).  18—. 

[Z.  S.]  W.  F., 

Clerk  of Court, County. 

Issued  this day  of  ,  A.  D.  18—. 

W.  F., 
Clerk  of Court, County. 


No.  63. 

Writ  Summoning  Garnishee  to  Appear  Before  Commissioner. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County^ 

Greeting: 

Whereas  in  a  certain  causependinj^  in  the court  of  

county,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  wherein 

the  plaintiff  claims  of  the  said  defendant  the  sum  of dollars, 

besides  interest  and  costs  of  suit,  a  writ  of  garnishment  was  issued 
against  E.  F.  of  your  county,  which  was  duly  served  upon  him  on 

the day  of ,  18 — , 'requiring  him  to  answer  thereto  before 

the  said  court  at  its  late  term;  and  whereas,  the  said  garnishee  has 
failed  to  answer  as  required  by  said  writ;  and  whereas,  a  commis- 
sion has  been  issued  by  the  said  court  and  lodged  in  my  hands, 
whereby  I  am  commanded  to  summon  the  said  E.  F,  before  me  to 
make  such  answer:  Therefore,  you  are  hereby  commanded  forth- 
Avith  to  summon  the  said  E.  F.,  if  to  be  found  within  your  county, 

to  be  and  appear  before  me,  at  my  office  in ,  on  the day 

of ,  18 — ,  then  and  there  to  answer  upon  oath  what,  if  any- 
thing, he  is  indebted  to  the  aforesaid  C.  D.,  and  was  when  the  afore- 
said writ  of  garnishment  was  so  served  upon  him,  and  what  effects, 
if  any,  of  the  said  C.  D.  he  has  in  his  possession,  and  had  when  the 
said  writ  was  so  served;  and  what  other  persons,  if  any,  within  his 
knowledge,  are  indebted  to  the  said  C.  D.  or  have  effects  belong- 
ing to  him  in  their  possession ;  \and  if  the  garnishee  is  an  incorpo- 
rated or  joint-stock  company^  in  which  the  defendant  is  alleged  to  he 
the  owner  of  shares,  or  interested  therein,  the  writ  shall  proceed:  and 
further  to  answer  what  number  of  shares,  if  any,  the  said  C.  D. 
owns  in  such  company  and  owned  when  the  said  writ  was  served, 
and  what  interest,  if  any,  he  has  in  such  company  and  had  when 
the  writ  was  served] . 

Herein  fail  not,  but  of  this  Avrit  make  return  forthwith. 

Witness,  etc.  \to  he  dated  and  tested  hy  the  ojficer,  with  his  official 
signature  and  seal  of  office']. 

The  above  writ  is  prescribed  by  statute.  It  is  served  by  delivering  a  copy  to 
the  garnishee,  and  must  be  returned  witliout  delay  to  the  officer  who  issued  it. 
R.  S.  233-235. 


44  GARNISHMENT. 

Commissioner'' s  Return. 

The  State  of  Texas,  ) 
County  of .        f 

In  obedience  to  the  commission  hereto  attached,  the  said  E.  F. 

personally  appeared  before  me  on  the day  of ,  A,  D.  18 — , 

and  made  his  answer,  under  oath,  and  subscribed  the  same  before 
me,  which  answer  is  hereto  attached  and  returned  with  said  com- 
mission. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  seal  of 
office  this day  of ,  A.  D.  18 — . 

[Z.  s.-]  , 

Notary  Public, County. 

Commissioner's  Return  ivlien  the  Garnishee  Refuses  to  Appear  and 

Answer. 

The  State  of  Texas, 

County  of . 

In  obedience  to  the  commission  hereto  attached,  I  issued  a  cita- 
tion for  the  said  E.  F.,  which  was  served  on  the  said  E.  F,  on  the 

day  of ,  A.  D.  18 — ,  which  citation,  and  service  indorsed 

thereon,  is  returned  with  said  commission.  And  I  further  certify 
that  the  said  E.  F.  failed  to  appear  before  me  in  obedience  to  said 
writ  [or,  the  said  E.  F.  appeared  hefore  me  at  the  time  and  place 
named  in  said  citation,  hut  refused  to  make  answer  as  therein  re- 
quired; or,  refused  to  answer  fully,  etc.']. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  seal  of 
office  this day  of ,  A.  D.  18 — . 

[L.S.]  -, 

JS'otary  Public, County. 


No.  64. 

Notice  to  Garnisliee  that  His  Answer  is  Controverted. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County y 

Greeting: 

Whereas,  it  appears  that  in  a  certain  cause  pending  in  the  

court  of county,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defend- 
ant, E.  F.,  a  resident  of  your  county,  was  summoned  as  garnishee 
and  made  answer  therein.  And  Avhereas,  the  said  A.  B.  has  filed 
in  this  court  {any  court  of  the  county  ivhere  the  garnishee  may  reside, 
having  jurisdiction  of  the  amount  of  the  judgment  in  the  original 
suit]  a  duly  certified  copy  of  the  original  judgment  in  said  suit  and 
of  the  proceedings  in  garnishment,  including  plaintiff's  application 
for  the  writ  of  garnishment,  the  answer  of  the  said  E.  F.  as  gar- 
nishee, and  the  affidavit  of  the  said  A.  B.  controverting  the  answer 
of  the  said  E.  F. :  Now,  therefore,  you  are  hereby  commanded  to 
notify  the  said  E.  F.  that  his  answer  has  been  so  controverted,  and 


TRIAL    OF    RIGHT    OF    PROI'KinV.  45 

that  the  issue  between  hiin  and  the  said  A.  B.  will  stand  for  trial 

at  the  next  terra  of  this  court,  to  be  holden  on  the Monday  in 

,  A.  D.  18—,  being  the  day  of  ,  A.  D.  18—,  at"  the 

court-house  of  said  county. 

Herein  fail  not,  but  have  you  before  said  court,  on  the  said  first 
day  of  the  next  term  thereof,  this  writ,  with  3'our  return  thereon 
showing  how  you  have  executed  the  same. 

AVitness,  etc.  [to  he  dated  and  tested  as  other  process']. 

The  above  is  served  by  delivering  a  copj'  to  the  garnishee.    R.  S.  350. 

No.  65. 

Claimants  Oath. 

The  State  of  Texas,  ) 

County  of .       f 

Before  me, ,  in  and  for  the  county  of ,  on  this  day 

personally  appeared  E.  F.,  who,  being  duly  sworn,  says  that  he 
claims  title  to  the  following  described  property  [insert  descrijytion'], 

levied  upon  by ,  sheriff  of county,  by  virtue  of  a  writ 

of  execution  [or  sequestration^  or  attachment.,  or  other  like  wrifl  issued 

out  of  the court  of county,  and  dated day  of , 

A.  D.  18 — ,  in  favor  of and  against ,  and  that 

this  claim  is  made  in  good  faith.  E.  F. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  . 

{Any  officer  authorized  to  administer  oaths.) 

No.  66. 

Claimanfs  Bond. 

The  State  of  Texas, 

County  of . 

"Whereas,  by  virtue  of  a  Avrit  of  [here  describe  the  writ] 

issued  out  of  the ■  court  [or  Ijy ^justice  of  thei^eacefor 

'precinct  No. , county]  in  favor  of [here  insert 

name  of  plaintiff  \  versus [here  insert  name  of  defendant]^ 

and  tested  on  the day  of ,  A.  D.  18 — , ^  [here  in- 
sert name  and  title  of  officer  seizing]  has  seized  and  taken  the  fol- 
lowing   described  personal  propert}^,  viz.:  [here  describe  the 

property],  the  value  of  which  property  has  been  assessed  by  said 

officer  at dollars.     And  whereas [hei^e  insert  name 

of  claimant]  has  claimed  said  property  and  presented  to  said  officer 
his  oath  in  writing  that  such  claim  is  made  in  good  faith :  Now, 

therefore,  we, [here  insert  name  of  claimant]  as  principal, 

and and as  sureties,  acknowledge  ourselves 

bound  to  pay  to  the  said [insert  name  of  plaintiff']  the 

sum  of dollars,  being  double  the  value  of  said  property,  con- 
ditioned that  the  said [here  insert  name  of  claimant],  in 


46  SEQUESTRATION. 

case  he  fails  to  establish  his  right  to  said  property,  will  return  the 
same  to  the  said [insert  the  name  of  the  ojficer'],  or  his  suc- 
cessor, in  as  good  condition  as  he  received  it,  and  shall  also  pay  the 
reasonable  value  of  the  use,  hire,  increase  or  fruits  of  the  same  from 
the  date  of  this  bond,  and  costs,  or  in  case  he  fails  to  return  said 
property  and  pay  for  the  use,  hire,  increase  or  fruits  thereof,  that 
he  will  pay  the  plaintiff  the  value  of  the  same,  with  legal  interest 
thereon  from  date,  and  shall  also  pay  all  damages  and  costs  that 
may  be  awarded  against  him. 

Witness  our  hands  this  the day  of ,  A.  D.  18 — . 


Approved  this day  of ,  A.  D.  18 — . 

The  officer  must  indorse  on  the  writ  that  claim  has  been  made  and  oath  and 
bond  given,  stating  by  whom,  and  must  indorse  on  the  bond  the  value  of  the 
property  assessed  by  himself,  and  forthwith  return  the  bond  and  oath  to  the 
justice  or  court  having  jurisdiction  to  try  the  claim.     R.  S.  5290. 

If  the  writ  was  issued  by  a  court  of  another  county  than  that  in  which  the 
levy  was  made,  the  officer  must  indorse  on  the  bond  the  value  of  the  property  as 
assessed  by  himself,  and  forthwith  return  the  bond  and  oath,  with  a  copy  of  the 
writ,  to  the  justice  or  court  of  the  county  in  which  the  levy  was  made  having 
jurisdiction  according  to  the  value  of  the  property  as  assessed  by  the  officer. 
He  must  also  indorse  on  the  original  writ  that  claim  has  been  made  and  oath 
and  bond  given,  stating  by  whom,  the  names  of  the  sureties,  and  to  what  justice  or 
court  the  bond  has  been  returned,  and  must  forthwith  return  the  original  writ 
to  the  justice  or  court*from  which  it  issued.     R.  S,  5293,  5294. 

If  the  assessed  value  of  the  property  does  not  exceed  $200,  the  writ  must  be 
returned  to  a  justice  of  the  peace;  if  more  than  $200  and  less  than  $500,  to  the 
county  court;  if  the  value  is  $500  or  over,  the  writ  must  be  returned  to  the  dis- 
trict court.  See  2  Tex.  Civ.  Prac,  §  881.  The  jurisdiction  of  the  district  and 
county  courts  is  determined  by  reference  to  articles  1098  and  1157  of  the  Revised 
Statutes. 

No.  67. 

Affidavit  for  a  Writ  of  Sequestration. 
In  the Court, County. 

A.  B.,  being  duly  sworn,  says  that  he  is  the  plaintiff  in  the  above- 
entitled  cause,  and  that  said  suit  is  brought  against  the  said  C.  D. 
to  foreclose  a  mortgage  [or  enforce  a  lien\  on  tlie  following  described 

personal  property,  to  wit, head  of  cattle,  of  the  following  <1q- 

^;q,vv^\a.ox\.  [desorihe  the  property  so  as  to  distinguish  it  from  other 

jjroyerty  of  a  like  kind] ;  that  said  cattle  are  worth dollars 

each  [give  the  value  of  each  article  —  about  the  milue  of  etc.,  is  not 

sujficient],  and  are  now  in county,  state  of  Texas;  that  the 

debt  which  said  mortgage  was  given  to  secure  is  just  and  wholly 
unsatisfied  [or  state  the  amount  remaining  due\\  that  it  amounts  to 

the  sum  of dollars,  and   became  due  [or  vnll  become  due']  on 

the day  of ,  A.  D.  18 — ;  and  that  he  fears  that  the  de- 


SEQUESTKATION.  47 

fendant  {or  pei^son  in  possession  of  i fie  property']  will  injure  (ill-treat, 
waste  or  destroy)  such  property  [or  w'tl  remove  it  out  of  the  UiniU 
of  the  county]  during  the  pendency  of  the  suit.                         A,  B. 
Sworn  to  and  subscribed  before  me  this day  of ,  18 — . 

Clerk  of Court, County. 

Analysis  of  Articles  4^6^,  4-^65,  Revised  Statutes;   2  Tex.   Civ. 

Prac,  §§  858,  859. 

The  above  form  of  affidavit  can  only  be  suggestive  in  other  cases. 
The  statute  specifies  seven  distinct  grounds  for  the  writ.  The  fol- 
lowing statements  must  be  made  in  all  cases: 

1.  That  the  plaintiff  is  the  owner  of  the  property  or  of  some  in- 
terest therein  (if  such  is  the  fact),  specifying  such  interest,  and  is 
entitled  to  the  possession  thereof. 

2.  In  suits  to  foreclose  a  mortgage  or  lien  on  property,  as  in 
the  above  form. 

3.  The  property  to  be  sequestered  must  be  described  with  such 
certainty  that  it  may  be  identified  and  distinguished  from  property 
of  a  like  kind,  giving  the  value  of  each  article  and  the  county  in 
which  it  is  situated. 

4.  Set  forth  one  or  more  of  the  causes  named  in  article  4864. 

{a)  If  the  suit  is  b}^  a  married  woman  for  divorce,  that  she  fears 
her  husband  will  waste  her  separate  property,  or  their  common 
property,  or  the  fruits  or  revenue  produced  b}'  either,  or  that  he 
will  sell  or  otherwise  dispose  of  the  same  so  as  to  defraud  her  of 
her  just  rights,  or  remove  the  same  out  of  the  limits  of  the  county 
during  the  pendency  of  the  suit. 

(b)  In  a  suit  for  the  title  or  possession  of  personal  property,  that 
he  fears  the  defendant  [or  person  in  possession  thereof]  will  injure, 
ill-treat,  waste  or  destroy  such  property,  or  remove  the  same  out  of 
the  limits  of  the  county  during  the  pendency  of  the  suit. 

{c)  In  suits  to  foreclose  a  mortgage  or  lien  on  personal  property, 
follow  the  above  form. 

{d)  In  a  suit  for  the  title  or  possession  of  real  property,  that  he 
fears  the  defendant  [or  person  in  possessio?i  thei'eof]  will  make  use 
of  his  possession  to  injure  such  property,  or  waste  or  convert  to  his 
own  use  the  fruits  or  revenue  produced  by  the  same. 

{e)  In  a  suit  for  the  title  or  possession  of  any  property,  that  he 
has  been  ejected  therefrom  by  force  or  \aolence. 

(/■)  In  a  suit  to  foreclose  a  mortgage  or  enforce  a  lien  on  real  es- 
tate, that  he  fears  the  defendant  [or  person  in  possessioti  thereof] 
will  make  use  of  such  possession  to  injure  such  property,  or  waste 
or  convert  to  his  own  use  the  timber,  rents,  fruits  or  revenue  thereof. 

(g)  In  a  suit  (1)  to  try  title  to  real  property,  (2)  to  remove  a  cloud, 
(3)  to  foreclose  a  lien,  (4)  for  partition,  that  the  defendant  [or  either 
of  tliem  in  the  event  there  he  more  than  one]  is  a  non-resident  of  this 
state. 

The  allegation  as  to  the  location  of  the  property  may  be  made  either  in  the 
original  or  in  a  supplemental  affidavit.     R.  S.  48G9. 


48 


SEQUESTKATION. 


No.  68. 

Bond  for  Writ  of  Sequestration. 

In  the Court, County. 


Know  all  men  by  these  presents,  that  we,  A.  B.  as  principal,  and 
M.  IS",  and  O.  P.  as  sureties,  do  hereby  acknowledge  ourselves  bound 

to  pay  C.  D.  the  sum  of dollars  [a  sum  at  least  double  the  value 

of  the  property  to  he  sequestered,  as  stated  in  the  ajidavif],  conditioned 
that  A.  B.,  plaintiff  in  the  above-entitled  suit,  who  has  applied  for 
a  writ  of  sequestration,  will  pay  to  the  said  0.  D.  all  such  damages 
as  may  be  awarded  against  him,  and  all  costs,  in  case  it  shall  be 
decided  that  said  sequestration  was  wrongfully  issued. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 


Approved  this day  of ,  A.  D.  18- 

Clerk  of 


W.  F., 
-  Court, 


A.  B. 

M.  N" 
O.  P. 


County. 


■  Count]/, 
court  in 


No.  69. 

Writ  of  Sequestration. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of- 
Greeting: 

Whereas,  in  a  certain  cause  now  pending  in  our  - 

and  for  the  county  of ,  wherein  A.  B.  is  plaintiff  and  C.  D.  is 

defendant,  the  said  A.  B.  has  made  application  for  a  writ  of  seques- 
tration: Therefore,  you  are  hereby  commanded  to  take  into  your 
possession  the  following  described  property,  valued  in  plaintiff's  affi- 
davit at  the  sum  of dollars,  viz,  [describe  the  property  according 

to  the  affidavit^  if  the  same  is  to  be  found  within  your  county,  and 
keep  said  property  subject  to  the  future  order  of  the  judge  of  our 
said  court,  unless  the  same  is  replevied  according  to  law. 

Herein  fail  not,  but  have  you  this  writ,  with  your  return  thereon, 

showing  how  you  have  executed  the  same,  before  our court  in 

and  for  the  county  of ,  to  be  holden  in  the  court-house  thereof, 

in  the  town  of ,  on  the Monday  of ,  next,  being  the 

day  of ,  A.  D.  18—. 


Witness 


clerk  of  the 


court  of 


county. 


Given  under  my  hatid  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this  the dav  of ,  A.  D.  18 — . 

W.  F., 


Issued  this 


day  of 


Clerk  of 

-,  A.  D.  18—. 


Court, County. 


Clerk  of 


W.  R, 

-  Court, 


County. 


SEQUESTRATION.  49 

Officer's  Return. 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  and  executed 

by  taking  possession  of  the  following  described  property,  and  the 
same  now  remains  in  my  custody,  to  wit:  [deso'lhe  the  2yi'operty]. 
\Ifthe  defendant  has  replevied  the  propertij:  and  the  defendant  C.  D., 
having  delivered  to  me  his  replevy  bond,  which  is  now  returned 
Avith  this  writ,  was  permitted  to  retain  })ossessi()n  of  said  property.] 

J.  D, 
Sheriff  of County. 

The  writ  will  not  be  issued  until  a  petition  has  been  filed  as  in  other  cases. 
K.  S.  486G. 

No.  70. 

Replevy  Bond  hy  the  Defendant  in  Sequestration. 

A.  B.  ) 

No.  — .     V.     ;-  In  the Court, County. 

c.  D. )  ; 

Whereas,  by  virtue  of  a  writ  of  sequestration,  issued  out  of  the 

court  in  and  for  the  county  of ,  against  C.  I),  at  the  suit 

of  A.  B.,  bearing  date  the day  of ,  A.  D.  18 — , , 

sheritf  of  the  county  of ,  has  taken  the  following  personal  prop- 
erty in  the  possession  of  said  C.  D.  [here  insert  a  description  and 
the  value  of  the  prop>ertf\.,  and  the  said  C.  D.  having  been  per- 
mitted to  retain  possession  of  the  same :  Now,  therefore,  we,  C.  D.  as 
principal,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge  ourselves 

bound  to  pay  A.  B.,  plaintiff  in  said  suit,  the  sum  of dollars 

[douhie  the  value  of  the  property  sequestered^,^  conditioned  that  said 
C.  D.  will  not  remove  said  property  out  of  the  county  [or  loill  not 
waste,  ill-treat.,  injure.,  sell  or  dispose  of  the  same,  according  to  the 
allegations  of  the  affidamf],  and  that  he  will  have  said  property,  with 
the  value  of  the  fruits,  hire  or  revenue  thereof,  forthcoming  to. abide 
the  decision  of  the  court,  or  Avill  pay  the  value  thereof,  and  of  the 
fruits,  hire  or  revenue  of  the  same,  in  case  he  shall  be  condemned 
so  to  do. 

Witness  our  hands  this day  of ^  A.  D.  IS — . 


Approved  this day  of ,  A.  D.  18 — . 


CD. 

M.  K 
O.  P. 


J.  D., 

Sheriff  of County. 

Condition  of  Bond  ivliere  the  Property  is  Real  Estate. 

Follow  the  preceding  Form  to  *  and  proceed:  Conditioned  that 
the  said  C.  D.  will  not  injure  said  property,  and  that  he  will  pay 
the  value  of  the  rents  of  the  same  in  case  he  should  be  condemned 
so  to  do. 

The  replevy  bond  must  be  returned  with  the  writ  into  court.     R  S.  4876. 
When  both  real  and  personal  property  is  seized,  the  bond  must  be  conditioned 
4 


50  SEQUESTRATION. 

SO  as  to  cover  both  species  of  property.    2  Tex.  Civ.  Prac,  §  867,  and  note  3  ors 
p.  863. 

In  suits  for  the  enforcement  of  a  mortgage  or  lien  upon  property,  the  defend- 
ant, should  he  replevy,  is  not  required  to  account  for  the  fruits,  hire,  revenue- 
or  rent  of  the  property;  but  this  exemption  does  not  apply  to  the  plaintiff  if  he 
replevies.    R.  S.  4883. 

No.  71. 
Meplevy  Bond  "by  the  Plaintiff  in  Sequestration. 


In  the Court, County. 

Whereas,  by  virtue  of  a  writ  of  sequestration,  issued  out  of  the 
court  in  and  for  the  county  of ,  against  C.  D.  at  the  suit  of 


A.  B.,  bearing  date  the  day  of  ,  A.  D.  18 — , 

sheriff  of  the  county  of ,  has  taken  the  following  property 

found  in  the  possession  of  said  C.  D.  {^here  insert  a  description  and 
the  value  of  the  property],  and  said  property  having  been  delivered 
by  said  officer  to  A.  B.,  plaintiff  in  said  suit:  !N"ow,  therefore,  we, 
A.  B.  as  principal,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge 

ourselves  bound  to  pay  to  C.  D.  aforesaid  the  sum  of dollars^ 

[double  the  value  of  the  property  sequestered],  conditioned  that  said 
property,  together  with  the  value  of  the  hire,  fruits,  revenue  and 
rent  thereof,  shall  be  forthcoming  to  abide  the  decision  of  the 
court. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 

A.  B. 
M.N. 
O.  P. 

Approved  this day  of jA.  D.  18 — . 

J.  D., 
Sheriff  of County. 

If  the  defendant,  his  agent  or  attorney,  is  present  in  the  county  at  the  time 
of  the  levy,  he  must  replevy  within  ten  days  after  tlie  levy;  if  absent,  within 
twenty  days.     If  he  fails,  the  plaintiff  may  replevy.     R.  S.  4880. 

Where  property  is  ordered  to  be  sold,  either  party  may  replevy  at  any  time 
before  the  sale.     R.  S.  4883, 

Plaintiff's  replevy  bond  must  be  returned  with  the  writ.    R.  S.  4881. 

No.  72. 

Ap])lication  for  Sale  of  Perish al)Ie  Property  Seised  Under  a  Writ 

of  Sequestration. 
A.  B.  ) 

Ko.  — .     V.      [  In  the Court, County. 

CD.  ) 
Now  comes  A.  B.,  plaintiff  in  the  above-entitled  cause  [or  C.  D.y 
the  defendanf\  and  makes  application  for  a  sale  of  the  following 
property,  seized  by  the  sheriff  of  county  on  the day  of 


SEQUESTKATION.  ■"»  1 

,  A.  D.  IS — ,  under  a  writ  of  sequestration  issued  in  said  cause, 

to  wit  [describe  the  property'] ;  and,  being  duly  sworn,  says  tliat  said 
property  has  not  been  replevied,  but  remains  in  the  hands  of  said 
sheriff,  and  that  said  property  [or  some  p>art  thereof^  to  he  specified^ 
is  likely  to  be  wasted  [or  destroyed^  or  greatly  depreciated  in  value] 
by  keeping;  that  the  debt  sued  for  in  said  suit  became  due,  etc.  [if 
not  diie^  so  state].  A.  B. 

Sworn  to  and  subscribed  before  me  this day  of  ,  A.  D. 

18—.  W.  F., 

Clerk  of Court, County. 

I  certify  that  the  above  affidavit  is  true. 

J.  D., 
Sheriff  of County. 

Order  of  Judge. 

The  State  of  Texas,  )  In  Chambers,  this  the  day  of  , 

County  of .        f  A.  D.  18—. 

Having  read  and  considered  the  foregoing  affidavit    and  certifi- 
cate, it  is  ordered  that  the  sheriff  of  county  proceed  to  sell 

the  property  described  in  said  affidavit  as  under  execution,  and  that 
he  make  due  return  thereof  according  to  law,  pursuant  to  an  order 
of  sale  to  be  issued.  [If  the  suit  was  hrought  for  a  demand  not 
yet  due:  and  as  it  appears  that  said  suit  was  brought  for  a  demand 
not  yet  due,  it  is  further  ordered  that  a  credit  be  given  to  the  pur- 
chaser at  the  sale  until  said  demand  becomes  due,  to  wit,  the 

day  of ,  A.  D.  18—.]  G.  H., 

Judge  of  the Court  of,  etc. 


No.  73. 

Order  of  Sale  of  Property  Seized  Under  Writ  of  Sequestration. 

The  State  of  Texas,  To  the  Sheriff  of County.,  Greeting: 

"Whereas,  A.  B.  has  applied  to  our court  within  and  for  the 

county  of [or  to  the  judge  in  vacation]  for  and  obtained  an 

order  to  sell  certain  property  seized  by  you  under  and  by  virtue  of 
a  writ  of  sequestration  issued  out  of  said  court,  in  a  certain  cause 
wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  the  said  property 
being  described  as  follows,  to  wit  [describe  the  property] :  Xow, 
therefore,  you  are  commanded  to  sell  said  property  as  under  exe- 
cution, first  giving  ten  days'  notice  of  the  time  and  place  of  sale, 
according  to  the  statute  in  such  case  made  and  provided. 

[If  the  suit  is  for  a  demand  not  due:  You  are  further  commanded 
to  make  said  sale  on  credit,  until  the day  of ,  18 — ,  tak- 
ing a  bond  from  the  purchaser,  with  two  or  more  good  and  suffi- 
cient sureties,  payable  to  you  as  slieriff  of county,  in  the  sum 

of dollars  [jiot  less  than  double  the  amount  of  the  purchase- 
money].,  conditioned  that  such  purchaser  shall  pay  the  purchase- 
money  at  the  expiration  of  the  time  given.] 


52  SEQUESTEATION. 

Herein  fail  not,  and  within  five  days  after  making  such  sale  j'-ou 
will  pay  the  proceeds  of  the  same  to  the  clerk  of  our  said  court  [or 
'return  the  hond  of  the  j^ur chaser,  as  the  case  may  he\  and  have  you 
then  and  there  this  writ,  with  your  return  thereon  showing  how 
you  have  executed  the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this  the day  of ,  A.  D.  18 — . 

.  [Z.  8.-]  '  W.  F., 

Clerk  of Court, County. 

Issued  this da}^  of ,  A.  D.  IS — . 

W.  R, 
Clerk  of  —  Court, County. 

Sheriff's  Beturn. 

Came  to  hand  on  the day  of ,  A.  D.  18 — ,  at o'clock 

—  M.,  and  executed  by  selling  the  following  described  property,  to 

wit  [descrihe  the  'property\  on  the day  of ,  A.  D.  18—,  at 

the  court-house  door  of  the  county  of ,  first  having  given  no- 
tice of  the  time  and  place  of  said  sale  for  ten  days  successively,  by 
posting  written  notices  at  three  public  places  in  said  county,  one  of ' 
which  was  at  the  court-house  door  of  said  county ;  at  which  sale 
said  property  was  struck  off  to for  the  sum  of dol- 
lars, he  being  the  highest  bidder  therefor,  and  I  herewith  return  the 

proceeds  of  said  sale,  to  wit,  the  sum  of dollars  \or  the  hond  of 

the  ;purchaser'\  into  court.  J.  D., 

Sheriff  of County. 


No.  74. 

Bond  ofPurcJiaser  of  Property  Seised  Under  a  Writ  of  Sequestra- 
tion. 
A.  B.  ) 

■TTo.  — .     V,      >-  In  the Court, County. 

CD.) 

Whereas,  by  virtue  of  an  order  of  sale  issued  out  of  the 

court  of  county,  in  a  certain  cause  pending  in  said   court 

wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  the  following 

property  \_here  inse?'t  a  description  of  the  property^  seized  by 

,  sheriff  of county,  by  virtue  of  a  writ  of  sequestration 

issued  in  said  cause,  was  on  the day  of ,  A.  D.  18 — ,  sold 

by  said  sheriff  on  a  credit  until  the  day  of ,  A.  D.  18 — 

[Jiere  insert  the  time  when  the  plaintiff'' s  right  of  action  accrues\  to 

E.  F.,  for  the  sum  of  dollars:  Now,  therefore,  we,  E.  F.  as 

principal,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge  ourselves 

bound  to  pay  to  the  sheriff  of county  the  sum  of dollars 

[douhle  the  amount  of  the  p\irchase-money\  conditioned  that  the  said 


INJUNCTION.  53 

E.  F.  shall  ]iay  said  purchase-money  at  the  expiration  of  the  time 

given,  to  wit,  on  the day  of ,  A.  D.  18 — . 

E.  F. 
M.N. 
O.  P. 

Approved  this day  of ,  A.  D.  18 — . 

J.  D, 
Sheriff  of County. 

The  above  bond  must  be  returned  with  the  order  and  filed  with  the  papers 
of  the  cause.  If  the  money  is  not  paid  at  the  expiration  of  the  time  given,  judg- 
ment may  be  entered  against  all  the  obligors.     R.  S.  4888. 


No.  75. 
Affidavit  for  Injunction  and  Fiat 

An  injunction  is  granted  on  application  by  petition,  verified  by  the  affidavit 
of  the  petitioner.  When  the  writ  is  applied  for  after  final  hearing,  the  petition 
need  not,  as  a  general  rule,  be  sworn  to.     2  Tex.  Civ.  Prac,  §  908;  R.  S.  2993. 

The  judge,  in  granting  the  writ,  indorses  on  or  annexes  to  the  petition  his 
order,  directed  to  the  clerk  of  the  proper  court.  R.  S.  2993.  He  may  require 
notice  to  be  given  to  the  adverse  party  in  such  manner  as  he  may  direct,  and 
fix  a  time  and  place  for  the  hearing  of  the  application;  and  where  the  writ  is 
granted  after  notice,  citation  to  the  defendant  is  not  necessary.    R.  S.  2994,  3005. 

Order  of  Judge. 

The  State  oe  Texas,  ]  At  Chambers,  this  day  of ,  A.  D. 

County  of .        f  18—. 

It  is  ordered  that  the  clerk  of  the court  of count}^  issue 

a  writ  of  injunction  in  all  things  as  prayed  for  in  the  Avithin  petition 
[or  upon  stick  terms  and  under  such  modijications,  liniitations  and 
restrictions  as  may  he  spec7fied\  upon  the  complainant  executing  to 
the  adverse  party  a  bond,  with  two  or  more  good  and  sufficient  sure- 
ties, in  the  sum  of dollars  \to  he  fixed  h>j  the  jiidtje^  douhle  the 

amount  of  any  money  judgment  or  deht  the  execution  or  collection  of 
which  is  sought  to  he  restrained]^  conditioned  as  the  law  requires. 

Witness  mv  hand  this day  of ,  A.  D.  18 — . 

G.  H., 
Judge  of Court, County. 

No.  76. 

Injunction  Bond. 

In  the Court, County. 

Know  all  men  by  these  presents,  that  we,  A.  B.  as  principal,  and 
M.  N.  and  O.  P.  as  sureties,  do  hereby  acknowledge  ourselves  bound 


54  INJUNCTION. 

to  pay  to  C.  D.  the  sum  of dollars  \ihe  amount  fixed  'by  the 

order  of  the  judge],  conditioned  that  A.  B.,  plaintiff  in  said  suit,  will 
abide  the  decision  which  may  be  made  therein,  and  pay  all  sums  of 
money  and  costs  that  may  be  adjudged  against  him,  if  the  injunc- 
tion granted  in  said  suit  be  dissolved,  either  in  whole  or  in  part. 

AVitness  our  hands  this da\'-  of ,  A.  D.  18 — . 

A.  B. 
M.  ]N". 
O.  P. 

Approved  this day  of ,  A.  D.  18 — •. 

W.  F., 
Clerk  of Court, County. 


If  the  state  is  complainant,  no  bond  is  required.    R.  S.  2997. 

No.  77. 
Writ  of  Injunction. 

The  State  of  Texas,  To  C.  D.,  Greeting: 

Whereas,  A.  B.  filed  his  petition  in  the court  of  — —county, 

on  the day  of  — — ,  A.  D.  IS — ,  in  a  suit  numbered on 

the  docket  of  said  court,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  de- 
fendant, alleging  [state  the  nature  of  the  jdoAntiff's  application,  and 
the  action  of  ^the  judge  thereon] ;  and  whereas  the  said  A.  B.  has  exe- 
cuted and  filed  with  the  clerk  of  said  court  a  bond  in  the  sum  of 

dollars,  payable  and  conditioned  as  required  by  law  and  the 

order  of  the  judge:*  You  are  therefore  commanded  \]iere  insert  the 
command  to  desist  and  refrain  from  the  commission  of  the  act  enjoined, 
as  alleged  in  the  petition,  and  as  modified  and  restricted  by  the  judge], 

until  the  further  order  of  said court,t  to  be  holden  within  and 

for  the  county  of ,  at  the  court-house  thereof  in ,  on  the 

Monday  in  -^ — ,  18 — ,  being  the day  of ,  A.  D.  18 — ,  when 

and  where  this  writ  is  returnable. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in , 

this day  of ,  A.  D.  18—. 

[Z.  ^.]  W.  F., 

Clerfc  of Court, County. 

Issued  this dav  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

To  Stay  Waate. 

\_As  in  tlie  preceding  Form  to  *,  and  then  proceed:]  You  are 
hereby  commanded  to  desist  and  refrain  from  felling,  cutting  down 
or  removing  any  timber  or  other  trees  standing,  growing  or  being 
in  or  upon  the  premises  above  described;  and  from  committing  or 
doing  any  other  or  further  waste  or  spoil  in  or  upon  the  said  prem- 


INJUNCTION.  55 

ises  or  any  part  thereof,  until  the  further  order  of  said  court,  etc. 
[as  in  preceding  Foriin  from  f  to  conclasion.'\ 

A  citation  must  issue  to  the  defendant  as  in  other  cases,  if  the  writ  of  in- 
junction does  not  pertain  to  a  suit  pending  in  the  court;  but  if  the  writ  was 
issued  after  notice  to  the  defendant,  a  citation  is  not  required.     R  S.  3005. 

The  writ  is  delivered  to  the  sheriflf  or  any  constable  of  the  county,  and  a 
writ  must  issue  to  each  county  in  which  there  is  a  person  to  be  enjoined.  It 
may  be  forwarded  to  other  counties  by  mail.  Service  is  made  by  delivering  a 
true  copy,  and  the  writ  must  be  returned  the  same  as  other  writs.  R  S  3000- 
3002. 

No.  78. 

Application  for  Attachment  for  Disoledience  of  an  Injunction. 


'Eo.  — .    V.     >-  In  the Court  of County. 


A.  B.,  plaintiff  in  the  above-entitled  cause,  being  duly  sworn,  says 

that  heretofore,  to  wit,  on  the day  of ,  A.  if.  18 — ,  a  writ 

of  injunction  issued  out  of  the court  of county,  directed 

to  C.  D.,  defendant  in  said  cause,  commanding  him  [state  the  com- 
onand  of  the  writ\  and  that  said  writ  was  duly  served  on  the  said 

C.  D.  on  the  day  of  ,  A.  D.  18—;  that  said  C.  D.  hath 

hitherto  refused,  and  doth  now  wholly  fail  and  refuse,  to  obey  the 
-commands  of  the  said  writ,  but  on  the  contrary,  etc.  [state  the  acts 
supposed  to  he  in  violation  of  the  commands  of  the  W7nt\. 

A.  B. 

Sworn  to  and  subscribed  before  me  this day  of A.  D 

18—.  W.  F., 

Clerk  of Court, County. 

Order  of  Court  or  Judge. 

The  State  of  Texas,  )   At  Chambers,  this day  of ,  A.  D. 

County  of .       ]  IS—. 

The  within  affidavit  having  been  read  and  fully  understood,  it  is 
ordered  that  a  writ  of  attachment  do  issue  to  the  sheriff  or  anv 

constable  of count}^,  requiring  him  to  arrest  the  said  C.  D.  and 

have  him  before  me,  at  chambers  [or  before  the  court],  at ,  on 

the day  of ,  A.  D,  18 — ,  at o'clock  —  M. 

G.  H., 
Judge  of  the Court, County. 

No.  79. 

Attachment  for  Disoheifing  an  Injunction. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County, 

Greeting: 
You  are  hereby  commanded  that  you  arrest  the  person  of  C.  D., 
if  to  be  found  within  your  county,  and  have  him  before  our 


56  IJTJUNCTION  —  CERTIORARI   TO   JUSTICES^    COURTS.    " 

court  of county  [or  before  the  judge],  on  the day  of ^ 

A.  D.  18 — ,  at o'clock  —  M.,  then  and  there  to  answer  for  an 

alleged  contempt  in  disobeying  the  commands  of  a  writ  of  injunc- 
tion issued  out  of  said  court  on  the day  of ,  A.  D.  18 — ,. 

and  served  upon  said  0.  D.  on  the day  of ,  A.  D.  18 — ,  it 

being  alleged  by  affidavit  filed  in  this  court  that  he  wholly  fails  and 
refuses  to  obey  the  command  of  said  writ.  You  are  further  com- 
manded to  retain  him  in  custody  until  he  shall  be  discharged  by 
our  said  court. 

Herein  fail  not,  but  of  this  writ,  and  how  you  have  executed  the 
same,  make  due  return. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this day  of ,  A.  D.  18 — . 

[Z.  S.-]  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

Beturn  to  the  Foregoing  Attachment. 

Came  to  hand  the day  of ,  A.  D.  18 — ,  and  executed  by 

arresting  the  person  of  the  within-named  C.  D.,  and  I  have  him  now 

before  the  court,  this day  of ,  A.  D.  18 — . 

J.  D., 
Sheriff  of County. 

On  retvirn  of  the  attachment,  tlie  court  or  judge  hears  proof,  and  if  it  is 
found  that  the  party  has  disobeyed  the  injunction,  directly  or  indirectly,  he  will 
be  committed  to  jail,  without  bail,  until  he  purges  himself  of  the  contempt,  in 
such  manner  as  may  be  directed.    R.  S.  3012,  3013. 


No.  80. 

Petition  for  a  Certiorari  to  a  Justice  of  the  Peace. 

The  State  of  Texas,  ) 

County  of .        f 

To  the  Honorable  G.  H.,  Judge  of  the Court  of County: 

Your  petitioner,  C.  D.,  respectfully  represents  that  E.  F.,  Esq.,  is 

a  justice  of  the  peace  of  said  county,  for  precinct  JSTo. ,  and  that 

on  the  day  of  « ,  A.  D.  18 — ,  in  a  certain  cause  wherein 

A.  B.  Avas  plaintiff  and  your  petitioner  was  defendant,  the  said  E,  F.,. 
Esq.,  as  such  justice  aforesaid,  rendered  a  judgment  against  your 
petitioner,  and  in  favor  of  the  said  A.  B.,  for  the  sum  of ■'  dol- 
lars and  costs  of  suit,  on  the  following  alleged  cause  of  action,  to 
wit  [state  briefly  the  nature  of  the  action']. 

And  for  ground  of  complaint  your  petitioner  states  that  the  said 
justice  of  the  peace  was  wholly  without  jurisdiction  to  render  said 


CERTIORARI    TO    JLSTICEs'    COURTS.  5T 

judgment  [state  the  facts  shoioing  a  want  of  j  urlsdiction.  See  2  Tex. 
Civ.  Prac,  §  11 IS]. 

[If  injustice  is  the  (jround  of  complaint.,  state  the  substance  of  thr 
evidence  offered',  that  no  other  evidence  was  offered;  and  state  such 
facts  as  will  shovj,  vrith  reasonable  certainty.,  that  the  petitioner  has 
rights.,  or  a  valid  defense^  of  which  he  has  been  deprived  by  the  erro- 
neous action  of  the  court,  or  that  without  fault  or  negligence  on  his 
part  he  was  unable  to  present  his  defense.  See  2  Tex.  Civ.  Prac, 
§§  IIU,  1115.-] 

Wherefore,  petitioner  prays  for  a  writ  of  certiorari  to  the  said 
E.  F.,  Esq.,  and  for  a  citation  to  the  said  A.  B.,  and  for  such  further 
proceedings  herein  as  the  law  directs.  C.  D. 

C.  D.,  being  duly  sworn,  says  that  the  matters  set  forth  in  the 
foregoing  petition  are  true.  C.  D. 

Sworn  to  and  subscribed  before  me  this day  of  ,  A.  D. 

18—.  AV.  F., 

Clerk  of Court, County. 

The  affidavit  may  be  made  by  the  petitioner,  or  by  some  person  for  him  hav- 
ing knowledge  of  the  facts.     R.  S.  344. 

A  writ  issued  without  the  order  of  the  judge  is  void.     2  Tex.'Civ.  Prac,  §  1110. 
For  additional  forms  and  suggestions,  see  Tex.  PI.  &  Forms,  ^§  210-215. 

Order  of  Judge. 

The  State  of  Texas,  )  j^  ^    ^  ^^ (.^^^^^^ 

County  of .        j  -^ 

The  within  petition  having  been  presented  in  open  court  [or  to 
me  at  chambers'].,  and  having  been  read  and  fully  understood,  it  is 
ordered  that  a  writ  of  certiorari  do  issue  according  to  law,  and  pur- 
suant to  the  prayer  of  the  petition,  upon  the  execution  of  a  bond 

by  the  petitioner  in  the  sum  of dollars. 

G.  H., 
Judge  of Court, County. 


No.  81. 

JBo«^  for  Certiorari  to  a  Justice's  Court. 

The  State  of  Texas,  ) 

County  of .       \ 

Whereas,  on  the  day  of ,  A.  D.  18 — ,  A.  B.  recovered 

in  the  justice's  court  for  precinct  Iso. ,  in  said  county,  a  judg- 
ment against  C.  D.  for  the  sum  of  dollars,  and  the  said  C.  I>. 

has  obtained  from  the  court  of  county  a  writ  of  certi- 

orar'i  to  said  justice's  court  to  remove  said  cause  to  our  said 

court  in  and  for  said  county:     Now,  therefore,  we,  C.  D.  as  princi- 
])al,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge  ourselves  bound 

to  pa}' to  said  A.  B.  the  sum  of  -dollars  [the  amount  directed- 

by  the  oixler].,  conditioned  that  the  said  C.  D.  will  perform  the  judg- 


58  CERTIOKAEI    TO   JUSTICES'    COUKTS. 

merit  of  the court  of county,  if  the  same  shall  be  against 

him. 

Witness  our  hands  this day  of ,  A.  D.  18 — .        C.  D. 

M.  K 
O.  P. 

Approved  this day  of ,  A.  D.  18—. 

W.  R, 
Clerk  of Court, County. 

The  bond  and  petition,  and  the  order  of  the  judge  when  made  in  vacation, 
must  be  filed  with  the  clerk  of  the  court.     R.  S.  348. 


No.  82. 

Writ  of  Certiorari  to  Justice's  Court. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County ^ 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  18 — ,  A.  B,  recovered  in 

the  justice's  court  for  precinct  !N"o. ,  in  said  county  of ,  a 

judgment  against  C.  D.  for  the  sum  of  dollars  and  costs  of 

suit;  and  whereas  the  said  C.  D.  has  obtained  from  the  Honorable 

,  judge  of  the  court  of county,  an  order  for  a 

writ  of  certiorari  to  remove  said  cause  to  the  court  of  said 

county,  the  said  C.  D.  having  given  bond  as  required  by  law  and 
the  order  of  the  judge:  You  will  therefore  serve  E.  F.,  Esq.,  who 
is  the  justice  of  the  peace  of  said  precinct,  with  a  copy  of  this  writ, 
Tv^hereby  he  is  commanded  to  make  and  certify  a  copy  of  the  en- 
tries in  the  cause  on  his  docket,  and  transmit  the  same,  with  the 
papers  of  said  cause  in  his  possession,  together  with  a  certified  copy 

of  the  bill  of  costs  taken  from  his  fee  book,  to  the  court  of 

county,  on  or  before  the  first  day  of  the  next  term  thereof,  to 

be  holden  within  and  for  the  county  of  — ■ — ,  at  the  court-house  in 

,  on  the Monday  in next,  being  the day  of , 

A.  D.  18—. 

Herein  fail  not,  but  have  you  then  and  there  before  said  court 
this  writ,  with  your  return  thereon,  showing  how  you  have  exe- 
cuted the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  oflSce  in  the 
town  of ,  this day  of ,  A.  D.  18 — . 

[Z.  ^.]  W.  F., 

Clerk  of Court, County. 

Issued  this dav  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

No  special  provision  is  made  as  to  tlie  mode  of  service  of  the  writ. 

If  there  is  not  time  to  make  out  and  file  the  transcript  and  papers  at  the  next 
•term,  they  may  be  filed  at  the  next  succeeding  term  thereafter.  At  the  first 
term  to  which  the  writ  is  returnable  the  adverse  party  may  move  to  dismiss  for 


AKBITRATION    AND    AWARD.  59 

want  of  sufficient  cause  appearing  in  the  affidavit,  oi-  for  want  of  a  sufficient 
bond.    2  Tex.  Civ.  Prac,  ^j^  1117,  1118;  R.  S.  34.3.  350.  353. 

A  supersedeas  clause  in  the  writ  is  not  necessary,  as  it  is  made  the  duty  of 
the  justice  to  stay  further  proceedings  on  the  judgment  upon  service  of  the 
writ.  R.  S.  350.  When  the  writ  is  issued,  the  clerk  must  forthwith  issue  a 
citation  for  the  adverse  party,  as  in  ordinary  cases.     R.  S.  351. 


No.  83. 

Submission  to  Arbitration  After  Commencement  of  Suit. 

The  State  of  Texas,  ) 
County  of .       f 

Whereas  a  controversy  is  now  pendino;  between  A.  B.  as  ])laint- 
iff  and  C.  I),  as  defendant,  in  relation  to  the  price  to  be  paid  by  the 
said  C.  D.  to  said  A.  B.  for  hibor  and  services  rendered  by  the  said 
A.  B.  for  and  in  behalf  of  the  said  C.  D.,  and  at  his  special  instance 
and  request,  in  purchasing  cotton  for  the  said  C.  D.  and  forwarding 

the  same  to  him  from  the  town  of ,  during  the  month  of , 

A.  D.  18 — ,  for  which  services  the  said  A.  B.  claims  the  sum  of dol- 
lars: Now,  therefore,  we,  A.  B.  as  plaintiff  and  C.  D.  as  defendant, 
do  hereby  submit  said  controversy,  and  all  matters  therewith  con- 
nected, to  the  arbitration  of  E.  F.,  chosen  by  the  said  A.  B.,  and 
G.  H.,  chosen  by  the  said  C.  D.,  in  accordance  with  the  provisions 
of  the  statute  in  such  case  made  and  provided.  And  the  parties 
hereto  respectively  reserve  the  right  of  appeal  from  the  decision  of 
said  arbitrators. 

"Witness  our  hands  this day  of ,  A.  D.  18 — . 

A.  B. 
CD. 

The  above  must  be  filed  with  the  papers  of  the  cause;  and,  if  filed  during  tho 
sitting  of  the  court,  an  order  should  he  made  for  referring  the  cause.  1  Tex. 
Civ.  Prac,  g  747.  If  there  is  no  suit  pending,  the  agreement  must  be  filed  in  the 
court  of  the  county  having  jurisdiction  of  tlie  amount  in  controversy  or  matter 
in  dispute.  The  clerk  will  designate  a  day  for  the  hearing,  not  less  than  two 
days  after  filing  the  agreement,  and  will  issue  process  for  witnesses.  On  the  as- 
sembling of  the  arbitrators  the  clerk  will  administer  to  them  the  statutory  oath, 
and  will  swear  the  witnesses.  See  1  Tex.  Civ.  Prac,  ^^  746  et  seq.;  R.  S.  47-53. 
The  statute  prescribes  the  qualifications  of  the  arbitrators.  R.  S.  48;  1  Tex.  Civ. 
Prac,  §  747. 

No.  84. 
Oath  of  Arhitrators. 

You  do  solemnly  swear  [or  cfjfirm]  that  you  will  fairly  and  im- 
partially decide  the  matter  in  dispute  between  A.  B.,  the  plaintiff, 
and  C.  D.,  the  defendant,  accortling  to  the  evidence  adduced  and 
the  law  and  equity  applicable  to  the  facts  proved,  so  help  you  God. 


00  ARBITKATION    AND    AWARD ACCOUNTS. 

No.  85. 

Aivard  of  Arbitrators. 


A.  B.  I 

c.  b.  f 

The  undersigned  arbitrators,  selected  by  the  above-named  par- 
ties in  their  agreement  dated  on  the day  of ,  A.  D.  18 — , 

and  filed  in  the court  of county  on  the day  of , 

A.  D.  18 — ,  having,  on  the  day  of   • ,  A.  D.  18 — ,  the  day 

assigned  by  the  clerk  of  said  court  for  the  trial  of  said  controversy, 
been  duly  sworn,  and  having  heard  the  allegations  and  proofs  of 
the  parties,  do  decide  that  the  services  of  the  said  A.  B.  for  the 

month  of ,  A.  D.  18 — ,  are  worth  the  sum  of dollars,  and 

that  he  ought  to  recover  from  the  said  C.  D.  the  said  sum  and  all 
costs  in  this  behalf  expended. 

"Witness  our  hands  this dav  of ,  A.  D.  18 — . 

E.  F. 
G.  H. 

The  award  must  be  filed  with  the  clerk,  and  the  statute  provides  that  at  the 
succeeding  term  it  shall  be  entered  and  recorded  as  the  judgment  of  the  court,^ 
and  that  execution  may  issue  as  on  ordinary  judgments.  R.  S.  54.  The  prac- 
tice seems  to  be  to  enter  judgment  in  due  form  on  the  award.  See  1  Tex.  Civ. 
Prac.  §  751;  also  Form  No.  \0S,  post. 

As  to  procedure  in  case  of  an  appeal,  see  1  Tex.  Civ.  Prac,  §  753.  Arbitra- 
tion at  common  law,  see  1  Tex.  Civ.  Px-ac,  §  757. 


No.  86. 

Affidavit  to  an  Account. 

The  State  of  Texas, 

Count}"  of . 

Before  me  [na?ne  and  style  of  office],  in  and  for  the  said  county 

of  ,  on  this  day  personally  appeared  ,  who,  being 

duly  sworn,  states  on  oath  that  the  foregoing  \or  within,  or  an- 
nexed] account  in  favor  of  ■  against  ,  for  the 

sum  of  dollars,  is,  within  the  knowledge  of  affiant,  just  and 

true;  that  it  is  due,  and  that  all  just  and  law^ful  offsets,  payments 
and  credits  have  been  allowed. 

{Signature  of  affiant.] 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—. 

"Witness  my  hand  and  seal  of  office,  the  day  and  date  above  writ- 
ten. 

[Z.  S.]  . 

{Style  of  office.] 

The  sworn  account  is  prima  facie  evidence  unless  a  counter-affidavit  is  filed. 
See  1  Tex.  Civ.  Prac,  §  488;  R  S.  2323. 


JLDCiMKNT.S.  CI 

No.  87. 

Judgment  Overruling  Exception  to  the  Petition  When  There  is  a 

Plea  Filed 
A.  B.  ) 

No.  — .     V.      [  ss. clay  of ,  A.  D.  IS—. 

CD.  ) 
This  day  came  the  parties  by  their  attorneys,  and  then  came  on 
•to  be  heard  the  exception  to  the  plaintiff's  petition  [stating  it  to  he 
to  the  original.,  amended.,  or  supplemental  p/etition,  as  the  case  may 
he] ;  and  the  argument  of  counsel  tliereon  being  heard,  it  is  tlie 
opinion  of  the  court  that  the  law  is  for  the  plaintiff.-'  It  is  there- 
fore considered  by  tlie  court  that  the  exception  be  overruled,  and 
that  the  plaintiff'  recover  of  the  defendant  the  costs  of  said  excep- 
tion, for  which  he  mav  have  his  execution. 

No.  88. 

Judgment  Overruling  Exception  to  the  Petition  Where  There  is  No 
Plea  Filed,  hut  Leave  to  Amend  is  Given. 

A.  B.  ) 

No.  — .     V.       -  ss.     day  of ,  A.  D.  18 — . 

CD.) 
[Commencevient  as  in  Form  No.  87  to''',  and  contimie:]  And  the 
defenchnit  now  here  prays  the  court  for  leave  to  file  his  amended 
answer,  which  is  accordingly  granted.  It  is  therefore  considered 
by  the  court  that  the  exception  be  overruled,  and  that  the  plaintiff' 
recover  of  the  defendant  the  costs  of  said  exception,  for  which  he 
may  have  his  execution. 

No.  89. 

Judgment  Overruling  F.vception  to  the  Petition  Where  There  is 
JS'o  Plea  Filed  and  No  Amendment  Made. 


day  of ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorneys,  and  then  came  on 
to  be  heard  the  defendant's  exception  to  the  plaintiff's  original  [or 
amended,  etc.]  petition  ;  and  the  argument  of  counsel  fhereon  being 
heard,  it  is  the  opinion  of  the  court  that  the  law  is  for  the  plaintiff. 
It  is  therefore  considered  by  the  court  that  the  exception  be  over- 
ruled, and  that  the  plaintiff  recover  against  the  said  defendant  his 
<lama;^es  by  occasion  of  the  premises.  [Where  the  cause  of  action  is 
liquidated,  proceed  asfolloios:']  And  it  appearing  to  the  court  that 
the  cause  of  action  is  liquidated  and  proved  by  an  instrument  of 
writing,  it  is  ordered  that  the  clerk  do  assess  the'damages  sustained 


C3  JUDGMENTS. 

by  said  plaintiff:  and  the  said  clerk  now  here  having  assessed  the- 
damages  aforesaid  at  the  sum  of doUars,  it  is  therefore  con- 
sidered by  the  court  that  the  said  plaintiff  [^naming  him']  do  have 
and  recover  of  the  said  defendant  \_namhighhix\  the  sum  of dol- 
lars, with  interest  thereon,  at  the  rate  of per  cent,  per  annum, 

together  with  his  costs  in  this  behalf  expended,  and  that  he  have 
his  execution.  It  is  further  ordered  that  execution  issue  in  favor  of 
the  officers  of  court  against  each  party  respectively  for  the  costs  by 
him  in  this  behalf  incurred. 

No.  90. 

Judgment  Sustaining  Exception  to  the  Petition  When  the  Plaintiff 
Asks  Leave  to  Amend. 
A.  B.   ) 

Ko.  — .     V.      V  ss.     day  of ,  A.  D.  IS—. 

CD.   ) 
This  day  came  the  parties  by  their  attorneys,  and  then  came  on 
to  be  heard  the  defendant's  exception  to  the  plaintiff's  petition  filed 
,  18 — ;  and  the  argument  of  counsel  thereon  being  heard,  it  is 


the  opinion  of  the  court  that  the  law  is  for  the  defendant.*  And 
the  plaintiff  now  here  prays  the  court  for  leave  to  file  his  amended 
petition,  which  is  accordingly  granted.  It  is  therefore  considered 
by  the  court  that  the  exception  be  sustained,  and  that  the  defend- 
ant recover  of  the  plaintiff  the  costs  of  said  exception,  for  which 
he  may  have  his  execution. 

No.  91. 

Judgment  Sustaining  Exception  to  the  Petition  Wliere  the  Plaintiff 
Does  Not  Ask  Leave  to  Amend. 

A.  b!) 

No.  — .     V.      y  ss.    day  of  ■ ,  A.  D.  IS—. 

CD.) 
[Commencem.ent  as  in  Form  No.  90  to''^'.,  and  continue:']  It  is 
therefore  considered  by  the  court  that  the  defendant  [jiaming  him] 
go  hence  without  day,  and  that  he  recover  of  the  plaintiff  [naming 
him]  his  costs  in  this  behalf  expended,  for  which  he  may  have  his 
execution. 

No.  92. 
Judgment  Sustaining  Exception  to  tlie  Answer, 


No.  — .     V.      \  ss.     day  of ,  A.  D.  18—. 

CD.) 
This  day  came  the  parties  by  their  attorne3''s,  and  then  came  on 
to  be  heard  the  phdntiff's  exception  to  the  defendant's  answer;  and 
the  argument  of  counsel  thereon  being  heard,  it  is  the  opinion  of 


JUDGMENTS.  Oi> 

the  court  that  the  law  is  for  the  plaintiff.  It  is  therefore  consid- 
ered by  the  court  that  the  exce])tion  bo  sustained,  and  that  the  de- 
fendant do  answer  further;*  and  that  the  \)\iiintifl  [naming  him] 
recover  of  the  defendant  [naming  him]  the  costs  of  said  exception, 
for  which  he  may  have  his  execution. 


No.  93. 

Judgment  Sustaining  Uxception  to  Answer  Where  Defendant  Elects 
to  Abide  by  His  Pleadings. 
A.  B.  ) 

No.  — .    V.     V  ss.     day  of ,  A.  D.  18—. 

CD.) 
[Commencement  as  in  Form  iVb.  92  to  *,  and  continue:]  And  the 
said  defendant  now  here  refuses  to  answer  further,  but  elects  to 
abide  b}'"  his  said  pleadings.  It  is  therefore  considered  by  the 
court  that  the  plaintiff  [namliig  him]  recover  against  the  defend- 
ant [naming  him]  his  damages  by  occasion  of  the  premises.  [When 
the  cause  of  action  is  liquidated^  ^proceed  as  in  Form  No.  96  from  *.] 


No.  94. 

Judgment  of  Nonsuit. 
No.  — .    v.      J-  ss. day  of ,  A.  D.  18- 


A.  B. ) 

CD.) 


This  day  came  the  parties  by  their  attorneys,  and  the  plaintiff 
says  he  will  not  further  prosecute  his  said  suit.*  It  is  therefore  con- 
sidered by  the  court  that  the  plaintiff  [naming  him]  take  nothing 
by  his  suit,  and  that  the  defendant  [naming  him]  go  hence  without 
day,  and  that  he  have  and  recover  of  the  plaintiff  his  costs  in  this 
behalf  expended,  and  that  he  have  his  execution. 


No.  95. 

Judgment  of  Nonsuit  Wlien  Plaintiff  Fails  to  Aj^^ear. 


day  of ,  A.  D.  18—. 

This  day  came  on  to  be  heard  the  above-entitled  cause,  and  the 
said  plaintiff  having  failed  to  appear  and  prosecute  his  said  suit  [as 
in  preceding  Foi'in^from  *]. 


^64  JUDGMENTS. 

No.  96. 

Judgment  hy  Default  and  Danuujes  Assessed  hy  the  Clerh. 

A.  B.  ) 

Ko.  — .     V.     \  ss.     day  of ,  A.  D.  IS—. 

C.  D.  ) 
This  day  came  the  plaintiff  by  his  attorney,  and  the  said  defend- 
ant, though  duly  cited,  having  failed  to  appear  and  answer  in  this 
behalf,  but  wholly  made  default,  wherefore  the  said  A.  B.,  plaintiff, 
ought  to  recover  against  the  said  C.  D.,  defendant,  his  damages  by 
occasion  of  the  premises;*  and  it  appearing  to  the  court  that  the 
cause  of  action  is  liquidated  and  proved  by  an  instrument  of  writ- 
ing, it  is  ordered  that  the  clerk  do  assess  the  damages  sustained  by 
said  plaintiif ;  and  the  said  clerk  now  here  having  assessed  the  dam- 
ages aforesaid  at  the  sum  of  •  dollars,t  it  is  therefore  con- 
sidered by  the  court  that  the  said  plaintiff,  A.  B.,  do  have  and  recover 

of  the  said  defendant,  0.  T>.,  the  sum  of dollars,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum,  together,  with  his 

costs  in  this  behalf  expended,  and  that  he  have  his  execution. 

The  defendant  may  demand  a  jury  trial  whether  the  demand  be  liquidated 
or  unliquidated.    R.  S.  1384,  1285.     See  1  Tex.  Civ.  Prac,  §  455. 

No.  97. 

Judgment  hy  Default,  and  Writ  of  Inquiry  Atvarded. 


day  of ,  A.  D.  18—. 


This  day  came  the  plaintiff  by  his  attorney,  and  the  said  defend- 
ant, though  duly  cited,  having  failed  to  appear  and  answer  in  this 
behalf,  but  wholly  made  default,  wherefore  the  said  A.  B.,  plaintiff, 
ought  to  recover  against  the  said  C.  D.,  defendant,  his  damages  by 
occasion  of  the  premises;  and  a  jury  having  been  demanded  by  the 
plaintiff,  it  is  ordered  by  the  court  that  the  damages  sustained  by 
the  plaintiff  be  assessed  when  the  cause  is  called  in  its  regular  order 
on  the  docket. 

As  to  the  right  of  plaintiff  to  a  jury  trial,  see  1  Tex.  Civ.  Prac,  §  455. 

No.  98. 

Judgment  iqmn  Writ  of  Inquiry. 
day  of ,  A.  D.  18—. 


This  day  came  on  to  be  heard  the  above-entitled  cause  upon  writ 
of  inquiry  heretofore  awarded,  and  the  evidence  having  been  heard 


JUDGMENTS.  65 


by  the  court,  etc.  {If  on  a  tibial  hy  jury  —  and  thereupon  came  a 
jury  of  good  and  lawful  men,  to  wit,  E.  F.  and  eleven  others,  who, 
being  duly  impaneled  and  sworn,  returned  the  following  verdict: 

"  AVe,  the  jury,  assess  the  damages  sustained  by  the  plain  titf  at 

dollars"  ] :  It  is  therefore  considered  by  the  court  [as  in  Form  No. 
96 from  f]. 


No.  99. 

Judgment  lij  Di  fault,  with  Writ  of  Inquiry  as  to  One  Befendantj 
and  upon  a  Verdict  as  to  the  Other. 

A.  B.  ) 

j^o.  — .        V.  J-  ss.    day  of ,  A.  D.  18 — . 

C.  D.  &  E.  F.  ) 
This  day  came  the  plaintiff  and  the  said  C.  D.  by  their  attorneys, 
and  the  said  E.  F.,  though  duly  cited,  having  failed  to  appear  and 
answer  in  this  behalf,  but  wholly  made  default,  wherefore  the  said 
A.  B.,  plaintiff,  ought  to  recover  against  the  said  E.  F.  his  damages 
by  occasion  of  the  premises;  and  thereupon  said  cause  came  on  for 
trial,  and  the  evidence  having  been  heard  by  the  court  [or  there- 
upon  came  a  jury,  as  in  Form  JVo.  98],  it  is  therefore  considered, 
etc.  [as  in  Form  JV^o.  96]. 


No.  100. 

Judgment  of  Dismissal  as  to  One  Defendant  and  hy  Default  against 

the  Other. 
A.  B.  ) 

jN'o.  — .  V.  y  ss.     day  of ,  A.  D.  18—. 

C.  D.  &  E.  F.  ) 
This  day  came  the  plaintiff  by  his  attorney,  and  it  appearing  to 
the  court  that  tlie  citation,  issued  to  the  defendant  C.  D.  has  been 
returned  not  served,  the  plaintiff  says  he  will  no  further  prosecute 
his  said  suit  against  the  said  defendant.  It  is  therefore  considered 
by  the  court  that  the  plaintiff'  take  nothing  by  his  suit  against  the 
defendant  C.  D.,  and  that  the  said  C.  D.  recover  of  the  plaintiff 
A.  B.  all  costs  in  this  behalf  expended,  for  which  he  may  have  his 
execution;  and  the  said  defendant  E.  F.,  though  duly  cited, -having 
failed  to  appear -and  answer  in  this  behalf,  and  it  appearing  to  the 
court  that  the  cause  of  action  is  liquidated  and  proved  by  an  instru- 
ment in  writing,  it  is  ordered  that  the  clerk  do  assess  the  damages 
sustamed  by  said  plaintiff";  and  the  said  clerk  now  here  having 

assessed  the  damages  aforesaid   at  the  sum  of  dollars,  it  is 

therefore  considered  [as  in  Form  No.  101,  from  *j. 


C6  JUDGMENTS. 

No.  101. 

J\i(lgmentl)]f  Defanlt  against  One  of  Several  Defendants,  and  against 
the  Plaintiff  as  to  the  Other  Defendant. 

A.  B.  ) 

1^0.  — .       V.  V  ss.     day  of ,  A.  D.  18 — . 

C.  D.  &E.  R  ) 
This  day  came  the  plaintiff  and  the  said  C.  D.  by  their  attor- 
neys, and  the  said  E,  F.,  though  duly  cited,  having  failed  to  appear 
and  answer  in  this  behalf,  but  wholly  made  default,  wherefore  the 
said  plaintiff  ought  to  recover  against  the  said  E.  F.  his  damages 
by  occasion  of  the  premises;  and  thereupon  came  a  jury  of  good 
and  lawful  men,  to  wit,  G.  H.  and  eleven  others,  who,  being  duly 
impaneled  and  sworn,  returned  the  following  verdict:  "We,  the 
jury,  find  for  the  defendant  C.  D.  upon  the  issue  joined  between 
the  parties,  and  assess  the  damages  against  the  defendant  E.  F.  at 

the  sum  of dollars."  *     It  is  therefore  considered  by  the  court 

that  the  defendant  C.  D.  go  hence  without  day,  and  that  he  re- 
cover of  the  plaintiff  his  costs  in  this  behalf  expended,  and  that  he 
have  his  execution;  and  that  the  plaintiff  have  and  recover  of  the 

defendant  E.  F.  the  sum  of dollars,  with  interest  thereon  at 

the  rate  of per  cent,  per  annum,  together  with  his  costs  in  this 

behalf  expended,  and  that  he  have  his  execution. 

No.  102. 

Judgment  hy  Confession  upon  Appearance  Without  Process. 


day  of ,  A.  D.  18—. 


This  day  came  the  plaintiff  by  attorney,  and  the  defendant  in 
his  own  proper  person  comes  and  says  that  he  cannot  deny  the  ac- 
tion of  the  said  A.  B.,  plaintiff,  nor  but  that  he  is  justly  indebted 

to  him  in  the  sum  of dollars.*     It  is  therefore  considered  by 

the  court  that  the  plaintiff,  A.  B.,  do  have  and  recover  of  the  said 

defendant,  C.  D.,  tne  sum  of dollars,  with  interest  thereon  at 

the  rate  of per  cent,  per  annum,  together  with  his  costs  in 

this  behalf  expended,  and  that  he  have  his  execution. 

Any  person  indebted,  or  against  whom  a  cause  of  action  exists,  may,  without 
process,  appear,  in  person  or  by  attorney,  and  confess  judgment  in  open  court; 
but  in  such  case  a  petition  must  be  filed,  and  the  justness  of  the  debt  or  cause 
of  action  must  be  sworn  to  by  the  person  in  whose  favor  the  judgment  is  con- 
fessed,    E.  S.  1348. 

When  the  judgment  is  confessed  by  attorney,  the  power  of  attorney  must  be 
filed,  and  a  recital  of  its  contents  nmst  be  made  in  the  judgment.  The  power 
of  attorney  or  other  instrument  autliorizing  the  judgment  must  be  executed 
after  the  suit  is  brought;  and  the  judgment  cannot  be  authorized  b}-  the  con- 
tract or  instrunient  sued  on.  R.  S.  1849.  The  amount  for  which  judgment 
may  be  entered  should  be  agreed  upon.     1  Tex.  Civ.  Prac,  §§  644-646. 


JUDGMENTS.  67 

No.  103. 

Poiver  of  Attorney  to  Confess  Judgment. 

The  State  of  Texas,  ) 
County  of .       j 

Know  all  men  by  these  presents  that  I,  C.  D.,  do  by  these  pres- 
ents appoint  E.  F.  my  true  and  lawful  attorney,  for  me  and  in  my 

name  to  confess  judgment  for  the  sum  of dollars,  in  a  certain 

suit  brought  by  A.  B.  against  me,  the  said  C.  D.,  in  the court 

of county,  state  of  Texas,  on  a  certain  promissory  note  exe- 
cuted by  me  to  the  said  A.  B.,  for  the  sum  of dollars,  dated 

the day  of ,  A.  D.  18 — ,  and  maturing months  from 

date  [or  make  such  descrijytion  as  will  identify  the  suit]. 

Witness  my  hand  this day  of ,  A.  D.  18 — . 


Signed  and  delivered  in  presence  of 

[Two  witnesses.] 


CD. 


The  above  must  be  executed  after  suit  brought,  must  be  filed  in  court,  and 
its  contents  must  be  recited  in  the  judgment.     R.  S.  1350. 


No.  104. 

Confession  of  Judgment  hy  Attorney  in  Fact. 

A.  B.  ) 

l^o.  — .     V.     }  ss.     day  of ,  A.  D.  18—. 

CD.) 
This  day  came  the  plaintiff  by  his  attorney,  and  the  defendant 
by  his  attorney  in  fact,  E.  F.,  ancl  the  power  of  attorney  being  duly 
filed  in  court,  by  which  it  appears  that  the  said  E,  F.  is  appointed 
attorney  in  fact  of  the  said  C.  D.,  defendant,  for  him,  the  said  C  D., 
and  in  his  name  to  confess  judgment  in  this  action  in  favor  of  the 

said  A.  B.,  plaintiff,  for  the  sum  of dollars,  and  it  appearing 

from  the  plaintiff's  petition  heretofore  filed, -and  duly  verified  by 
affidavit,  that  tlie  aUeged  cause  of  action  is  just,  it  is  therefore  con- 
sidered by  the  court  that  the  plaintiff,  A.  B.,  do  have  and  recover 

of  the  said  defendant,  C  D.,  the  sum  of dollars,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum,  together  with  his 

costs  in  this  behalf  expended,  and  that  he  have  his  execution. 

No.  105. 

Judgment  hy  Nil  Dicit. 
A.  B.  ) 

No.  — .    V.     V  ss.     day  of ,  A.  D.  18—. 

CD.) 
This  day  came  the  parties  by  tlieir  attorneys,  and  the  defendant 
withdraws  the  answer  by  him  heretofore  filed,  and  says  nothing  in 


68  JUDGMENTS. 

bar  of  the  plaintiff's  action;  wherefore  the  said  A.  B.,  phiintiff, 
ought  to  recover  against  the  said  C.  D.,  defendant,  his  damages  by 
occasion  of  the  premises;  and  it  appearing  to  the  court  that  the 
cause  of  action  is  liquidated,  etc.  ^as  in  Form  JVo.  96  from  *]. 

See  1  Tex.  Civ.  Prac,  §§  438,  439. 

No.  106. 

Judgment  for  the  Plaintiff  tijpon  Verdict  of  Jury. 

A.  B.  ) 

Ko.  — .    V.     y  ss.     day  of ,  A.  D.  18—. 

CD.) 
This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury  of  good  and  lawful  men,  who,  being  duly  impaneled 
and  sworn,  upon  their  oaths  do  say  that  they  find  for  the  plaintiff, 

and  assess  his  damages  at  the  sum  of dollars.     It  is  therefore 

considered  [as  in  Form  JS^o.  96  from  f]. 

No.  107. 

Judgment  for  the  Plaintiffs  the  Case  Being  Tried  hy  the  Court 


;N"o.  — .     V.     y  ss.    day  of ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorneys,  and  submit  the 
matter  in  controversy,  as  well  of  fact  as  of  law,  to  the  court;  and 
the  evidence  and  the  argument  of  counsel  having  been  heard  and 
fully  understood,  it  is  considered  by  the  court  [as  in  Form  No.  96 

from  f]. 

No.  108. 

:        Judgment  for  the  Plaintiff  on  the  Aivard  of  Arbitrators. 

A.  B.  ) 
:No.  — .     V.     \  ss.    day  of  ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorneys,  and  it  appearing 
to  the  court  that  this  cause  has  been  duly  referred,  according  to 
the  statute  in  such  case  made  and  provided,  to  [mention  names  of 
arhitrators\  to  hear  and  determine,  and  that  the  report  of  said  ar- 
bitrators has  been  filed,  whereby  they  award  as  follows,  viz. : , 

it  is  therefore  considered  by  the  court  [as  in  Form  No.  96  from,  f , 
followirig  the  award  of  the  a7'l>itrators\. 

If  the  costs  are  not  awarded  by  the  arbitrators,  they  must  be  taxed  equally 
against  the  parties.  The  award  is  filed  witli  the  clerk,  and  judgment  is  en- 
tered at  tJie  next  suceedin^'  term.  R.  S.  54,  58;  2  Tex.  Civ.  Prac,  ^  751.  See 
Form  No.  85,  su\)va. 


JUDGMENTS.  69 

No.  109. 

Judgment  for  the  Plaintiff  for  the  Eecovery  of  Si)ecific  Property. 

A.  B.  ) 

No.  — .     V.      \  ss.    clay  of ,  A.  D.  IS — . 

CD.  j 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury  of  good  and  lawful  men,  who,  beinij:  duly  impaneled 
and  sworn,  upon  their  oaths  do  say  that  they  find  for  the  plaintiff, 
and  that  the  defendant  does  detain  [Jiere  insert  a  descriptioii  of  the 
propert]l\  as  in  the  plaintiff's  petition  alleged ;.  and  they  assess  the 

plaintiff's  damages,  by  reason  thereof,  at  the  sum  of dollars, 

and  they  assess  the  value  of  said  \]tere  insert  the  value  of  each  specijid 

aj'ticle]  at  dollars.     It  is  therefore  considered  by  the  court 

that  the  plaintiff,  A.  13.,  recover  of  the  defendant,  C  !).,  the  [here 
insert  description  of  proper  ty\  described  in  the  plaintiff's  petition, 

and  the  sum  of dollars  damages,  and  his  costs  by  him  in  this 

behalf  expended.*     And  if  said  [Jiere  insert  description  of  property'\ 
cannot  be  had,  it  is  considered  by  the  court  that  the  plaintiff,  A.  ]3., 

recover  of  the  defendant,  C.  D.,  said  sum  of dollars,  the  value 

so  assessed,  in  addition  to  the  damages  and  costs  aforesaid,  and  that 
he  have  execution. 

[If  the  property  has  heen  replevied  hy  the  defendant,  proceed  from,  - 
as  follows:  And  if  said  [here  insert  a  description  of  the  propertrj\ 
cannot  be  had,  it  is  considered  by  the  court  that  the  plaintiff,  A.  B., 

recover,  jointly  and  severally,  of  the  defendant,  C.  D.,  and   

and ,  sureties  on  his  replevy  bond,  filed  in  this  cause 


on  the day  of ,  A.  D.  IS — ,  the  said  sum  of dollars, 

the  value  so  assessed,  and  the  further  sum  of dollars,  the  value 

of  the  hire  of  said  property  so  assessed  by  the  jury,  and  that  he 
have  his  execution.] 

When  the  property  consists  of  more  than  one  article,  the  value  of  each  specific 
article  must  be  sejjarately  assessed. 


No.  110. 

Judgment  for  the  Defendant  in  Suit  for  the  Eecovery  of  Specific 
Property,  the  Same  Having  Been  Peplevied  hy  the  Plaintiff. 

dav  of ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorne3^s,  and  thereupon  came 
a  jury  of  good  and  lawful  men,  who,  being  duly  impaneled  and 
sworn,  upon  their   oaths  do  say  that  they  find  for  the  defendant, 

and  that  they  assess  the  value  of  said  [describe  the  property]  at 

dollars,  and  the  value  of  the  hire  from  the day  of ,  A.  D. 

18 —  [the  date  of  the  replevy  hond],  at dollars.  "  It  is  therefore 


70  JUDGMENTS. 

considered  by  the  court  that  the  plaintiff  take  nothing  by  his  suit, 
and  that  the  defendant  C.  D.  recover  of  the  plaintiff  A.  B.  and 

and ,  sureties,  as  hereafter  stated, dollars, 

the  value  of  said  property  as  aforesaid,  and  the  further  sum  of 


dollars  damages.  And  it  further  appearing  that  said  property,  to  wit 

[describe  it],  was,  on  the  day  of  ,  A.  D.  18 — ,  delivered 

by  the  sheriff  of  county  to  the  plaintiff,  who  thereupon  exe- 
cuted a  replevy  bond  with and as  sureties,  it  is 

ordered  that  a  writ  issue  commanding  the  proper  officer  to  restore 
said  ])roperty  to  the  defendant,  and  if  said  property  is  so  restored 
the  judgment  herein  rendered  for  its  value  shall  stand  discharged; 
but  if  said  property  cannot  be  found,  execution  shall  issue  against 

the  plaintiff'  and and ,  sureties  as  aforesaid,  for 

the  sum  of  dollars,  the  value  so  assessed,  in  addition  to  the 

damages  and  costs  aforesaid,  for  which  the  defendant  C.  D.  shall 
have  his  execution. 

No.  111. 

Judgment  for  the  Recovery  of  Land. 

No.  — .     V.      \  ss.    day  of ,  A.  D.  18—. 


This  day  came  the  parties  by  their  attorne3^s,  and  thereupon 
came  a  jury  of  good  and  lawful  men,  who,  being  duly  impaneled 
and  sworn,  upon  their  oaths  do  say  that  they  find  for  the  plaintiff', 

and  assess  his  damages  at  the  sum  of dollars.     It  is  therefore 

considered  by  the  court  that  the  plaintiff  A.  B.  recover  of  the  de- 
fendant C.  D.  the  premises  described  and  bounded  as  follows  [here 
describe  the  'prendses\  for  which  he  may  have  his  writ  of  possession, 

and  also  the  sum  of dollars,  his  damages  aforesaid,  and  his 

costs  in  this  behalf  expended,  for  which  he  may  have  his  execution. 


No.  112. 

Judgment  Foreclosing  Lien. 
day  of ,  A.  D.  18—. 

This  day  came  the  parties  by  tiieir  attorneys,  and  thereupon 
came  a  jury  of  good  and  lawful  men,  to  wit,  E.  F.  and  eleven  oth- 
ers, who,  being  duly  elected,  tried  and  sworn,  upon  their  oaths 
do  say : 

"  We  find  for  the  plaintiff,  and  that  the  facts  stated  in  his  peti- 
tion are  true,  and  assess  the  damages  at dollars.'" 

^  G.  H., 

Foreman. 

And  it  appearing  to  the  court,  from  the  finding  of  the  jury  afore- 
said, that  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 
dollars,  and  that  the  note  sued  on  bears  interest  at  the  rate 


JUDGMENTS.  71 

ot per  cent,  per  annum;  and  it  further  appearing  to  the  court 

that  said  note  was  executed  on  the day  of ,  A.  D.  18 — ,  to 

secure  the  payment  of  the  purchase-money  for  the  following  de- 
scribed tract  of  land,  to  wit  \Jiere  give  descriptiou\  it  is  there- 
fore considered  by  the  court  that  the  plaintiff  A,  B.  do  have  and 
recover  of  the  said  defendant  C.  D.  said  sum  of dollars,  prin- 
cipal and  interest,  with  interest  thereon  from  this  date  at  the  rate 

of per  cent,  per  annum,  together  with  his  costs  in  this  behalf 

■expended. 

And  it  is  ordered,  adjudged  and  decreed  by  the  court  that  the 
lien  as  it  existed  on  the day  of ,  A.  D.  iS — ,  upon  the  above- 
described  tract  of  land  be  and  the  same  is  hereby  foreclosed ;  and 
that  the  clerk  of  this  court  do  issue  an  order  of  sale,  directed  to  the 

sheriff  or  any  constable  of ■  county,  commanding  him  to  seize 

and  sell  the  above-described  tract  of  land  as  under  execution;  and 
that  he  apply  the  proceeds  thereof  to  the  payment  and  satisfaction 

of  the  said  sum  of dollars,  together  with  all  interest  that  may 

be  due  thereon,  and  the  costs  of  this  suit.  And  if  the  said  land 
shall  sell  for  more  than  sufficient  to  pay  off  and  satisfy  said  sums  of 
money,  then  the  said  officer  is  hereby  directed  to  pay  over  the  ex- 
•cess  to  the  defendant;  but  if  the  said  land  shall  not  sell  for  enough 
to  pay  off  and  satisf}^  this  judgment,  then  said  officer  shall  make  the 
balance  due  as  under  execution. 

And  it  is  further  ordered  that  the  said  officer  place  the  purchaser 
of  said  property  in  possession  thereof  within  thirty  days  after  the 
<iay  of  sale. 

No.  113. 

Judgment  for  Plaintiff  in  Suit  1)1/  Attachment. 

A.  B.  &  Co.  ) 

:N'o.  — .         V.  }  ss.     day  of ,  A.  D.  18—. 

C.  D.       ) 

This  day  came  the  parties  by  their  attorneys,  and  thereupon  said 
cause  came  on  to  be  heard  by  the  court  upon  the  pleadings  and  the 
evidence.     And  the  court  being  of  opinion  that  the  plaintiffs  ought 

to  recover,  it  is  ordered,  adjudged  and  decreed  that and 

,  partners  under  the  firm  name  of  A.  B.  &  Co.,  plaintiffs, 

■do  have  and  recover  of  the  defendant  C.  D.  the  sum  of dollars, 

together  with  their  costs  in  this  behalf  expended,  and  that  they 
have  their  execution. 

And  it  appearing  to  the  court  that  a  writ  of  attachment  hereto- 

for  issued  in  this  cause  was,  on  the day  of ,  18 — ,  by  the 

sheriff'  of county,  levied  upon  the  following-described  prop- 
erty of  the  defendant  [insert  descrijytion  and  valuation']^  and  that 

the  same  *  was  replevied  by  the  defendant,  who,  on  the day 

■of ,  18 — ,  executed  his  rej)levy  bond  therefor  in  the  sum  of 

dollars,  with and as  sureties,  it  is  there- 
fore ordered,  adjudged  and  decreed  that  said  attachment  lien,  as  it 
•existed  on  the day  of ,  IS — ,  be  and  the  same  is  foreclosed, 


"Til  APPEALS    AND   WRITS    OF    ERKOR. 

and  that  an  order  of  sale  be  issued  commanding  the  sale  of  said 
property,  or  so  much  thereof  as  may  be  necessary  for  the  satisfac- 
tion of  this  judgment.f 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  plaintiffs 

have  and  recover  of  the  defendant  C.  D.,  and and 

-,  the  sureties  on  his  replevy  bond,  the  sum  of dollars  \the 


amount  of  the  j^idgment,  interest  and  costs,  or  the  value  of  the  prop- 
erty  replevied  and  interest,  according  to  the  terms  of  the  rej)levy  bond,'], 
for  which  they  may  have  their  execution. 

\_If  the  property  has  heen  delivered  to  a  claim.ani  for  the  trial 
of  the  right  of  property,  proceed  from  f ,  omitting  the  statement  that 
it  was  replevied,  after  *,  and  stcite:  was  delivered  to  E.  F.,  claim- 
ant, who  on  the  day  of  ,  A.  D.  IS — ,  Hied  with  said 

officer  his  affidavit  and  bond,  with and •  as  sure- 
ties, for  the  trial  of  the  right  of  property,  which  issue  is  pending  in 
the  court  of county,  and  undetermined,  between  plaint- 
iffs and  the  said  E.  F.  It  is  therefore  considered  by  the  court  that 
said  attachment  lien  be  foreclosed,  subject  to  the  judgment  ren- 
dered in  said  suit  for  the  trial  of  the  right  of  property,  and  that, 
should  said  claimant  fail  to  establish  his  right  to  said  property,  the 
clerk  of  this  court  shall  issue  an  order  of  sale  directed  to  the  proper 
officer,  commanding  him  to  sell  the  above  described  property,  or 
so  much  thereof  as  may  be  necessary,  for  the  satisfaction  of  the 
judgment  rendered  in  this  cause.] 

Where  an  attachment  issued  from  a  county  court  is  levied  on  land,  an  order 
or  decree  foreclosing  the  lien  is  not  necessary;  but  the  judgment  must  briefly 
recite  the  issuance  and  lev3^  of  the  attachment,  and  such  recital  will  be  suffi- 
cient to  preserve  the  lien.  The  land  may  be  sold  under  execution,  and  the  sale 
will  vest  in  the  purchaser  all  the  estate  of  the  defendant  in  attachment  in  such 
land  at  the  time  of  the  levy  of  the  writ.  R.  S.  214.  But  see,  as  to  the  power  of 
the  county  court  to  enforce  liens,  1  Tex.  Civ.  Prac,  §  112, 


No.  114. 

Cost  Bond  on  Appeal  or  Writ  of  Error. 

A.  B.  ) 

~So.  — .     V.      V 

CD.) 

Whereas,  in  the  above  numbered  and  entitled  cause,  pending  in 

the court  of county,  and  at  a  regular  term  of  said  court,, 

to  wit,  on  the day  of ,  18 — ,  the  said  A.  B.  recovered  judg- 
ment against  the  said  C.  D.  for  the  sum  of dollars,  with  inter- 
est thereon  from  the day  of ,  18 — ,  at per  cent,  per 

annum,  and  all  costs  of  suit,  from  which  judgment  the  said  C.  D. 
has  taken  an  appeal  [or  sxied  out  a  writ  of  error']  to  our  court  of 

civil  appeals  for  the supreme  judicial  district,  at ,  in  the^ 

county  of :  * 

Now,  therefore,  we,  C.  D.  as  principal,  and  M.  IST.  and  O.  P.  as- 
sureties,  acknowledge  ourselves  bound  to  pay  A.  B.  the  sum  of 


APPEALS    AND    WRITS    OF    ERROR.  "5 

dollars  [at  hast  douhle  the  prohahle  amount  of  the  costs  of  the  suit  in 
the  court  of  civil  appeals,  supreme  court  and  court  helow,  to  le  fixed 
lyy  the  clerk  of  the  court  heloio\  conditioned  that  the  said  C.  D.,  ap- 
pellant \or  plaintiff  in  error\  shall  prosecute  his  appeal  [or  virit  <f 
error']  with  etfect,  and  shall  pay  all  costs  which  have  accrued  in  the 
court  below  and  which  may  accrue  in  the  court  of  civil  appeals  and 
the  su])reme  court. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 

C.  D. 

M.N. 

O.  P. 

I  have  fixed  the  probable  amount  of  the  costs  of  suit  in  the  court 
of  civil  appeals,  the  supreme  court  and  the  court  below  at dol- 
lars, and  approve  the  foregoing  bond  this day  of ,  18 — , 

W.  R, 
Clerk  of Court, County. 

When  no  bond  is  required,  an  appeal  is  perfected  by  giving  notice  of  appeal 
in  open  court;  wliei-e  a  bond  is  required,  by  giving  notice  and  filing  bond.  R.  S. 
1387,  i;JSS;  2  Tex.  Civ.  Prac,  ^^  1126,  1127,  1133.  As  to  the  requisites  of  a  cost 
bond,  see  2  Tex.  Civ.  Prac,  §  1134. 

A  -writ  of  error  is  obtained  by  filing  a  petition  with  the  clerk  of  the  trial  court. 
The  petition  must  be  addressed  to  the  clerk,  must  state  the  names  and  resi- 
dences of  the  parties  adversely  interested,  describe  the  judgment  with  sufficient 
certainty  to  identify  it,  and  pray  for  a  writ  of  error.  If  a  supersedeas  is  desired, 
the  facts  authorizing  it  must  be  stated,  with  a  prayer  for  its  issuance.  2  Tex. 
Civ.  Prac,  §  1130.  The  writ  of  supersedeas  is  required  only  when  execution  has 
been  issued.    R.  S.  1406. 

No.  115. 

Siqyersedeas  Bond  on  AiiiJeal  or  Writ  of  Error. 

[Copij  the  preceding  Form  to  *.]  Now,  therefore,  we,  C.  D.  as 
principal,  and  M.  N.  and  O.  P.  as  sureties,  acknowledge  ourselves 

bound  to  pay  A.  B.  the  sum  of  dollars  \at  least  dotdjle  the 

amount  of  the  judgment,  interest  and  costs],  conditioned  that  the 
said  C.  D.,  appellant  [or  plaintiff  in  error],  shall  prosecute  his  ap- 
peal [or  writ  of  error]  with  effect,  and  in  case  the  judgment  of  the 
supreme  court  or  the  court  of  civil  appeals  shall  be  against  him,  he 
shall  perform  its  judgment,  sentence  or  decree,  and  pay  all  such 
ilauuiges  as  said  court  may  award  against  him. 

"Witness  our  hands  this^ day  of ,  A.  D.  18 — . 


Approved,  etc. 


CD. 
M.N. 
O.  P. 


Where  the  judgment  is  for  the  recovery  of  land  or  other  property  (which 
should  be  recited  in  the  bond),  the  bond  must  be  further  conditionoJ  that 
the  appellant  or  plaintiff  in  error  shall,  in  case  the  judgment  is  affirmed,  ]iay  to 
the  appellee  or  defendant  in  error  the  value  of  the  rent  or  hire  of  the  property 
in  any  suit  which  may  be  brought  therefor.     R.  S.  1401,  MO). 


74  APPEALS    AND   WKITS   OF    ERROR. 

No.  116. 

Affidavit  in  Lieu  of  Cost  Bond  on  Appeal  or  Writ  of  Error. 

A.  B. 
'Eo.—.     V. 

CD., 

C.  D.,  defendant  in  the  above  entitled  and  numbered  cause,  pending 
in  the court  of county,  being-  duly  sworn,  says  that  at  a  reg- 
ular term  of  said  court,  to  wit,  on  the day  of ,  A.  D.  18 — ,  the 

said  A.  B.,  plaintiff  in  said  cause,  recovered  a  judgment  against  him, 

the  said  C.  D.,  for  the  sum  of dollars,  with  interest  thereon 

from  the day  of ,  18 — ,  at per  cent,  per  annum,  and 

all  costs  of  suit,  from  which  said  judgment  he  desires  to  prosecute 

an  appeal  \_or  writ  of  erroi'^^  to  the  court  of  civil  appeals  for  the 

supreme  judicial  district,  but  that  he  is  unable  to  pay  the  costs  of 
appeal  \or  the  writ  of  error\  or  any  part  thereof,  or  to  give  security 
therefor.  C.  D. 

Sworn  to  and  subscribed  before  me  this day  of ,  A.  D. 

18—.  ,  W.  F., 

Clerk  of Court, County. 

As  to  the  requisites  of  the  aflSdavit,  the  mode  of  proof  in  case  of  a  contest, 
etc.,  see  2  Tex.  Civ.  Prac,  §  1137. 

No.  117. 

Citation  in  Error. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County^ 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  18 — ,  a  judgment  was 

rendered  by  our court  of county,  for  the  sum  of dol- 
lars and  costs  of  suit,  in  favor  of  A.  B.  and  against  C.  D.,  in  a  cer- 
tain cause  pending  in  said  court  numbered  on  the  docket 

thereof,  in  which  the  said  A.  B.  is  plaintiff  and  the  said  C.  D.  is  de- 
fendant [describing  the  judgment  according  to  the  petition  for  the 
writ  of  error\^  and  whereas  the  said  C.  D.  has  filed  with  the  clerk 

of  our  said court,  on  the day  of ,  18 — ,  a  petition  for 

a  writ  of  error  for  the  revision  and  correction  of  said  judgment: 
You  are  therefore  commanded  forthwith  to  summon  the  said  A.  B. 
to  appear,  within  sixty  days  from  the  service  of  this  writ,  and  de- 
fend the  said  writ  of  error  before  our  court  of  civil  appeals  for  the 
supreme  judicial  district,  at ,  in  the  county  of . 

Herein  fail  not,  but  of  this  writ  make  due  return  within  ten  days 
from  the  issuance  hereof  \or  twenty  days,  if  the  defendant  resides 
mot  of  the  county],  showing  how  you  have  executed  the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in , 

this  the day  of ,  A.  D.  18 — . 

[Z.  8.]  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 


APPEALS   AND    WRITS    OF   ERROR.  75 

Slieriff's  Return. 

Carae  to  hand  on  the day  of ,  A.  D.  18 — ,  and  executed 

on  the day  of ,  A.  D.  18 — ,  by  deliverino^  to  the  within 

named ,  in  person  [to  each  defendant,  if  more  than  o)ie],  a 

true  copy  of  this  writ,  J.  D., 

Sheriff  of County. 

Service  must  be  made  forthwith.  If  the  writ  is  returned  not  served,  the  dili- 
gence used  must  be  shown,  and  wliere  the  defendant  is  to  be  found,  so  far  as 
the  officer  has  been  able  to  ascertain.  The  clerk  will  fortl,iwith  issue  an  alias 
or  pluries  citation,  which  must  indicate  how  many  previous  citations  have  been 
issued.  If  it  appears  from  tlie  papers  of  the  cause,  or  from  the  return,  that  the 
defendant  is  a  non-resident  of  the  county,  the  citation  must  direct  service  to 
be  made  on  his  attorney  of  record.  Service  may  also  be  made  by  publication. 
R.  S.  1393-1399. 


No.  118. 

Writ  of  Supersedeas. 

■  The  State  of  Texas,  To  any  Constable  of County.,  Greeting: 

"Whereas,  on  the day  of ,  A.  D.  18 — ,  in  the court 

of count}'',  in  a  certain  cause  therein  pending,  numbered 

on  the  docket  thereof,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defend- 
ant, the  said  A.  B.  recovered  a  judgment  against  the  said  C.  D.  for 

the  sum  of dollars,  with  interest  and  costs  of  suit,  on  which 

said  judgment  an  execution,  numbered ,  was  issued  out  of  said 

court,  on  the  day  of ,  A.  D.  18 — ,  and  delivered  to 

-,  sheriff  of county ;  and  the  said  C.  D.  having  perfected  an 


appeal  [or  icrit  of  error'\  to  remove  said  judgment  and  all  proceed- 
ings thereon  to  our  court  of  civil  appeals  for  the  supreme 

judicial  district,  by  executing  a  supersedeas  bond  as  required  by  law  : 

These  are,  therefore,  to  command  you  to  cause ,  sheriff 

of county,  to  desist  from  any  further  proceeding  under  or  by 

virtue  of  the  said  execution,  and  that  he  return  the  same  forthwith. 
Herein  fail  not,  but  of  this  Avrit  make  due  return  forthwith,  show- 
ing how  you  have  executed  the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in , 

this  the day  of ,  A.  D.  18 — . 

W.  F 

Clerk  of Court, County. 

Issued  the day  of ,  A.  D.  IS — . 

W.  F., 
Clerk  of  Court, County. 

If  execution  has  not  been  issued,  the  filing  of  a  supersedeas  bond  stays  the 
execution  of  the  judgment.  If  execution  has  been  issued,  the  fact  must  be 
stated  in  the  petition  for  a  writ  of  error,  with  a  prayer  for  a  supersedeas,  which 
must  issue  forthwith.     R.  S.  1406,  2326. 


70  APPEALS  AND  WKITS  OF  ERROK. 

No.  119. 

Certificate  of  Judgment  for  Affirmance  on  Appeal. 

The  State  of  Texas, 
County  of . 

At  a  terra  of  the  court,  begun  and  hoklen  at  ,  within 

and  for  the  county  of ,  before  the  Hon. ,  judge  thereof, 

on  the day  of ,  A.  D.  18 — ,  and  ending  on  the day  of 

,  A.  D.  18 — ,  the  following  cause  came  on  for  trial: 

A.  B.,  Plaintiff,      ) 

^o.  — .  V.  \ 

C.  D.,  Defendant.  ) 

And  afterwards,  to  wit,  on  the  day  of  ,  A.  D.  18 — ,  a 

judgment  was  rendered  therein  by  said  court,  in  words  and  figures 
as  follows :   [Here  copy  the  judgmentPf' 

And  afterwards,  to  wit,  on  the day  of ,  A.  D.  IS — ,  said 

: gave  notice  of  appeal  in  open  court,  which  was  noted  on 

the  docket  and  entered  of  record  in  \A^ords  as  follows:  {Insert  the 
entry.     Omit  this  paragraph  if  the  recital  is  made  in  the  judcjment^^ 

And  afterwards,  to  wit,  on  the day  of ,  A.  D.  18 — ,  said 

■ filed  his  appeal  bond  in  words  and  figures  as  follows: 

{Copy  the  appeal  hond  loith  its  indorsements^ 

The  State  of  Texas, 

County  of . 

I, ,  clerk  of  the  court  in  and  for  the  count}''  of 

-,  state  of  Texas,  do  hereby  certify  that  the  foregoing 


pages  contain  a  true  and  correct  copy  of  the  judgment,  notice  of 
appeal,  and  appeal  bond  in  a  certain  cause  determined  in  said  court, 

numbered on  the  docket  thereof,  wherein is  plaintiff 

and is  defendant. 

Witness  my  hand  and  the  seal  of  said  court,  this  day  of 

,  A.  D.  18—. 

[Z.  8.'\  W.  F., 

Clerk  of Court, County. 

See  3  Tex.  Civ.  Prac,  §  1182. 


No.  120. 

Certificate  for  Affirmance  on  Writ  of  Error, 

The  State  of  Texas,  ) 
County  of .       j 

{Copy  the p>receding  Forvi  to  *.] 

And  afterwards,  to  wit,  on  the  day  of  ,  A.  D.  18 — y 

said filed  his  petition  and  bond  for  a  writ  of  error,  in 

words  and  figures  as  follows:  {Copy  the  petition  and  bond.'] 

And  afterwards,  to  wit,  on  the day  of ,  A.  D.  18 — ,  the 


APPEALS    AND    AVKITS    OK    KKKOK.  7( 

clerk  of  said  court  issued  a  citation  in  error,  which  with  the  return 
thereon  is  in  words  and  figures  as  follows:  \_Copij  citation  ami  re- 
turn and  all  indorsements.^ 

The  State  of  Texas,  ) 
Oount}^  of .        i 

I, ,  clerk  of  the  court  of county,  do  hereby 

certify  that  the  forcigoing  pages  contain  a  true  and  correct 

copy  of  the  judgment,  })etition  and  bond  for  writ  of  error,  and  cita- 
tion in  error  and  return  thereon,  in  a  certain  cause  determined  in 

said  court,  numbered on  the  docket  thereof,  wherein — — ■ 

is  plaintiff  and is  defendant. 

Witness  mv  hand  and  the  seal  of  said  court  this day  of , 

A.  D.  IS—. 

[Z.  s.-\  ^Y.  F., 

Clerk  of Court, County. 

Indorse  as  indicated  below. 

No.  121. 

Indorsements  on  Certificate  for  Affirmance. 

A.  B.,  Appellant  [or  Plaintiff  in  Error\   \ 

No.  — .  V.  V 

C.  D.,  Appellee  {or  Defendant  in  Error'].  ) 

From County. 

Applied  for  by on  the  day  of  ,  A.  D.  18 — , 

and  delivered  to on  the day  of ,  A.  D.  18 — . 

^\.  F., 

Clerk  of Court, County. 

See  Rule  98  for  district  and  county  courts;  2  Tex.  Civ.  Prac,  §  1148.  As  to 
form  and  arrangement  of  transcript,  see  2  Tex,  Civ.  Prac,  §§  1144,  1145. 

For  suggestions  for  obtaining  a  certiorari  to  perfect  the  record,  see  2  Tex. 
Civ.  Prac,  ^  1186. 


78 


EXECUTIONS    AND    OKDERS    OF    SALE, 


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EXECLTIONS    AND    ORDERS    OF    SALE.  Ti> 

The  several  items  of  the  bill  of  costs  to  be  collected  must  be  indorsed  on 
every  execution.  Costs  accruing  on  an  appeal  or  writ  of  error  are  collected  on 
an  execution  issued  from  the  appellate  court.  R.  S.  984,  1036;  1  Tex.  Civ. 
Prac,  §  742. 

When  an  alias  or  pluries  execution  is  issued,  it  mu«t  show  on  its  face  the 
number  of  previous  executions  which  have  been  issued  on  the  judgment.  R  S. 
2338. 

The  execution  must  be  made  returnable  on  the  first  day  of  the  next  term  of 
the  court,  or  in  thirty,  sixty  or  ninety  days,  if  so  directed  by  the  plaintiff,  his 
agent  or  attorne}^     R.  S.  2338. 

As  to  the  county  to  which  executions  may  issue,  procedure  on  death  of  a 
party,  see  2  Tex.  Civ.  Prac,  §  1239  et  seq. 

As  to  execution  against  principal  and  surety,  see  2  Tex.  Civ,  Prac.  g  1016. 

For  forms  in  designating  homestead,  see  Sayles'  Laws  of  Business,  §«^  314-316. 
See,  also,  2  Tex.  Civ.  Prac,  gg  1248,  1249. 


No.  123. 

Return  upon  an  ExeGution  of  Sale  of  Personal  Propert'tf. 

Came  to  hand  the  day  of  ,  A.  D.  18 — ,  at o'clock 

— .  M.,  and  executed  on  the day  of ,  A.  D.  18 — ,  at 

— .  M.,  by  taking  into  my  possession  the  following  described  per- 
sonal property  of  the  defendant,  pointed  out  by  said  defendant, 
viz.:  [^Insert  a  description  of  the  property i\     And   afterwards,  on 

the day  of  ,  18 — ,  advertised  the  same  for  sale  at , 

on  the  day  of ,  18 — ,  by  written  advertisement  posted 

for  ten  days  successively  at  three  public  places  in  the  county  of 

,  one  of  which  was  at  the  court-house  door  of  said  county,  and 

one  at ,  the  place  of  sale.     And  on  said day  of ,  18 — , 

at ,  pursuant  to  said  advertisement,  the  said  property  being 

then  and  there  present  and  subject  to  the  view  of  the  persons  at- 
tending the  sale,  I  sold  the  said  property  to ,  to  whom 

the  same  was  struck  otf  for  the  sum  of dollars,  that  being  the 

highest  sum  bid  for  the  same.     And  the  said having  paid 

the  sum  so  bid  by  him,  the  said  property  was  delivered  into  his  pos- 
session. J.  D., 

Sheriff  of County. 

No.  124. 

Return  upon  an  Execution  of  Sale  of  Real  Estate. 

Came  to  hand  the day  of ,  A.  D.  18 — ,  at o'clock 

— .  M.,  and  afterward,  to  wit,  on  the day  of ,  A.  D.  18 — ,. 

at o'clock  — .  M.,  being  unable  to  find  any  personal  property 

or  uncultivated  lands  in  ray  county  belonging  to  the  defendant, 
and  the  defendant  neglecting  to  point  out  other  property,  I  levied 
the  within  writ  on  the  following:  described  cultivated  land  belong- 


^0  EXPXUTIOKS    AKD    ORDERS    OF    SALE. 

ino'  to  the  defendant :  [Insej^f  a  (lescription?^    And  afterwards,  on  the 

day  of ,  A.  D.  18 — ,  advertised  the  same  for  sale  at  the 

court-house  door  of  the  county  of  : ,  on  the day  of , 

A.  I).  18 — ,  being  the  first  Tuesday  of  said  month,  by  written  ad- 
vertisement posted  for  twenty  days  successively  next  before  the 

said  day  of  sale,  at  three  public  places  in  the  county  of ,  one 

of  which  was  at  the  door  of  the  court-bouse  of  said  county;  and 
also  delivered  to  the  defendant  a  copy  of  said  notice  \or^  if  he  is  a 
non-resident  of  the  county,  that  a  copy  of  the  notice  was  mailed  to 
Jiim,  directed  to  him  at  his postoffice],  and  mailed  a  copy  of  the  same 

to ,  his  attorney  of  record. 

\_If  the  defendant  reqtiests  that  notice  of  sale  he  published:  I  also 

caused  a  notice  of  said  sale  to  be  published  in  the ,a  newspaper 

published  in  the  county  of ,  for  three  consecutive  weeks  before 

said  sale,  to  wit,  on  the , and days  of ,  A.  D.  18 — , 

and  I  herewith  return  a  printed  copy  of  said  notice.]     And  on  said. 

day  of  ,  A.  D.  IS — ,  between  the  hours  of  10  o'clock 

A.  M.  and  4  o'clock  P.  M.,  at  the  court-house  door  of  said  county, 

I  sold  said  property  at  public  sale  to ,  to  whom  the  same 

was  struck  off  for  "the  sum  of dollars,  that  being  the  highest 

secure  bid  for  the  same;  and  the  said  having  paid  the 

sum  so  bid  by  him,  I  executed  to  him  a  deed  for  said  land. 
^  J.  D., 

Sheriff  of County. 

The  statute  provides  for  the  sale  of  land  in  separate  lots  or  tracts.  E.  S.  2362- 
2364.  If  the  property  does  not  sell  for  enough  to  satisfy  the  execution,  the  offi- 
cer proceeds  anew.  R.  S.  2374.  If  a  bidder  refuses  to  comply  with  his  bid,  the 
officer  may  sell  the  property  again,  on  the  same  day  if  there  be  sufficient  time; 
if  not,  he  must  re-advertise.     R.  S.  2382. 

Notice  is  to  be  published,  at  the  request  of  the  defendant,  if  there  be  a  news- 
paper in  the  county  that  will  publish  it  for  the  compensation  allowed.  The 
contents  of  the  notice  are  prescribed  by  statute.     R.  S.  2366. 

The  statute  does  not  direct  the  manner  of  making  the  return  nor  what  facts 
shall  be  stated.    See  3  Tex.  Civ.  Prac,  §§  1275, 1276. 


No.  125. 

Notice  of  Sale  of  Beat  Estate  under  Execution. 

Execution  Sale, 

^™  oTnt^^rf  —  1  ^"^  *^^ ^''''^^  ""^ County. 

A.  B.  and  C.  D.,  partners,  plaintiffs,  against  E.  F.,  defendant. 

By  virtue  of  an  execution  issued  out  of  the court  of 

county,  on  a  judgment  rendered  in  said  court  on  the day  of 

,  A.  I).  18 — ,  in  favor  of  tlie  said  A.  B.  and  C.  D.  and  against 

the  said  E.  F.,  I  did,  on  the day  of ,  A.  D.  IS—,  at  


EXECUTIONS  AND  ORDEUS  OF  SALE.  81 

o'clock  — .  M.,  levy  upon  the  following  described  tracts  and  parcels 

of  land  situate  in  the  county  of ,  state  of  Texas,  and  belonging 

to  the  said  E.  F.,  to  wit:  {rlescr'ihe  the  land,  giving  the  numler  of 
acres,  original  survey,  locality  in  the  county,  and  the  name  hy  which 
the  land  is  most  generally  known j  if  imder  an  order  of  sale  on  the 
foreclosure  of  a  mortgage  or  other  lien,  describe  the  property  as  it  is 

described  in  the  judgment  and  order  of  sal e^^ ;  and  on  the day  of 

,  A.  D.  18 — ,  being  the  first  Tuesday  of  said  month,  between 

the  hours  of  10  o'clock  A.  M.  and  4  o'clock  P.  M.  on  said  day,  at 
the  court-house  door  of  said  county,  I  will  offer  for  sale  and  sell  at 
public  auction,  for  cash,  all  the  right,  title  and  interest  of  the  said 
E.  F.  in  and  to  said  property. 

Dated  at this day  of ,  A.  D.  18 — . 

J.  D., 
Sheriff  of County. 

The  description  given  in  the  above  form  is  that  prescribed  by  the  statute 
where  the  notice  is  published.  It  would  probably  be  suflBcient  in  any  case. 
R.  S.  2366.  The  purpose  of  the  advertisement  is  to  give  notice  of  the  time  and 
place  of  sale,  and  also  to  afford  persons  desiring  to  purchase  an  opportunity  to 
examine  the  title,  and  to  determine  for  themselves  what  land  or  interest  in  land 
they  can  acquire  by  a  purchase.     2  Tex.  Civ.  Prac,  §  1283. 

The  notice,  written  or  printed,  must  be  posted  at  three  public  places  in  the 
county,  one  at  the  court-house  door  (at  the  usual  place  for  posting  notices. 
2  Tex.  Civ.  Prac,  §  1283),  for  at  least  twenty  days  successively  next  before  the 
(lay  of  sale;  a  copy  must  be  delivered  to  the  defendant,  if  lie  resides  iu  the 
county,  and  if  not  it  must  be  mailed  to  him,  and  a  similar  notice  must  be 
mailed  to  his  attorney  of  record.  The  notice  must  also  be  published,  if  requested 
by  defendant.  R.  S.  2366.  As  to  what  is  meant  by  "the  court-house  door," 
see  2  Tex.  Civ.  Prac,  §§  1280,  1283. 

The  above  form  may  be  varied  for  a  sale  of  personal  property. 


No.  126. 

Delivery  Bond  ly  Defendant  in  Execution. 

A.  B.  ) 

Xo.  — .     V.      I 
CD.  ) 

Whereas,  by  virtue  of  an  execution  issued  out  of  the court 

of county,  on  the  — -  day  of ,  A.  D.  18 — ,  upon  a  certain 

judgment  rendered  in  said  court  on  the  day  of ,  A.  D. 

18 — ,  in  favor  of  A.  B.,  plaintiff,  against  C.  D.,  defendant, , 

the  sheriff  of  said  county  of  ,  did,  on  the day  of 


A.  D.  18 — ,  seize  and  take  possession   of  the  following  described 
])i'0]ierty  of  the  said  defendant,  viz.  [descrihe  the proj^ertyY,  and  all 

of  said  property,  having  been  appraised  by  the  said  sheriff  at 

dollars,  was  returned  to  the  said  C.  D.  at  his  request:    Xow,  there- 
lore,  we,  C.  D.  as  principal,  and  M.  X.  and  O.  F.  as  sureties,  ac- 
knowledge ourselves  bound  to  the  said  A.  B.,  to  the  effect  that  said 
6 


^.^ 


82  JiXECLTIOXS    AND   OEDERS   OF   SALE. 

property  shall  be  delivered  to  said ,  sheriff  as  aforesaid, 

at ,  on  the day  of ,  A.  D.  18 — ,  to  be  sold  according- 

to  law,  or,  in  default  thereof,  that  the  said  C.  D.  will  pay  to  said 

,  sheriff  as  aforesaid,  the  sum  of dollars,  which  is  the 

fair  value  of  said  property. 

Witness  our  hands  this day  of ^  A.  D.  18 — . 

C.  D. 
M.  K 
O.  P. 

Approved  this  day  of ,  A.  D.  18 — , 

J.  D., 
Sheriff  of County. 

If  the  property  is  not  delivered,  nor  payment  made,  according  to  the  terms 
of  the  above  bond,  the  officer  will  return  the  bond  forthwith,  indorsed  "for- 
feited," to  the  clerk  of  the  court;  and  if  the  judgment  remain  unsatisfied,  in 
whole  or  in  part,  execution  will  issue  against  the  principal  and  sureties  for  the 
amount  due,  not  exceeding  the  stipulated  value  of  the  property.  The  clerk 
must  indorse  on  the  execution  that  no  delivery  bond  is  to  be  taken.  R.  S.  3359. 
See  Form  130. 


No.  127. 

JExecution  and  Order  of  Sale. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County^ 

Greeting: 

Whereas,  on  the da}^  of ,  A.  D,  18 — ,  A.  B.  recovered  a 

judgment  in  the court  of county  against  C.  D.,  for  the 

sum  of dollars,   with  interest  thereon  from  the day  of 

,  18 — ,  at per  cent,  per  annum,  and  all  costs  of  suit,  with 

a  foreclosure  of  a  lien  on  the  following  described  property,  viz. 

{describe  the  property^  as  said  lien  existed  on  the day  of , 

18 — ,  and  ordering  a  sale  of  said  property  as  under  execution  to 
satisfy  said  judgment: 

Now,  therefore,  you  are  hereby  commanded  that  you  seize  the 
above-described  property  and  sell  the  same  as  under  execution; 
and  if  the  said  property  cannot  be  found,  or  if  the  proceeds  of  a 
sale  thereof  be  insufficient  to  satisfy  said  judgment,  interest  and 
costs  of  suit,  and  the  further  costs  of  executing  this  Avrit,  then  of 
the  goods  and  chattels,  lands  and  tenements  of  the  said  C.  D.,  you 
will  cause  to  be  made  said  sum  of  money,  or  any  balance  remain- 
ing unpaid,  as  in  case  of  ordinary  executions. 

Herein  fail  not,  and  have  you  the  said  moneys,  together  with  this 
writ,  showing  how  you  have  executed  the  same,  before  said  court, 

at  the  court-house  thereof  in  the  town  of ,  on  the  first  day  of 

the  next  term  thereof,  being  the day  of ,  A.  D.  18 —  [or 

in  thirty,  sixty  or  ninety  days,  if  so  directed  hy  the  plaintiff,  his 
agent  or  attorney}. 


EXECUTIONS  AND  ORDERS  OF  SALE.  OO 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this  the dav  of ,  A.  T>.  18 — . 

[Z.  S.]  ^  W.  R, 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

The  above  is  based  on  articles  1340  and  2338  of  the  Revised  Statutes.  The 
officer  is  not  required  to  produce  the  money  in  court.  He  must  pay  it  to  the 
person  entitled  at  the  earliest  opportunity.     R.  S.  2384,  2385. 

Tlie  several  items  of  the  bill  of  costs  to  be  collected  must  be  indorsed  on  the 
writ  in  intelligible  words  and  figures.    R.  S.  2338.    See  Form  No.  121. 


No.  128. 

Execution  for  the  Delivery  of  Property. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County ^ 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  IS — ,  A.  B.  recovered  a 

judgment  in  the  court  of  county  against  C.  D.  for  the 

title  and  possession  of  the  following  described  property,  viz.  [here 
insert  a  particular  description  of  the  proper ty\  and  for  the  sura  of 

dollars,  with  interest  thereon  from  the day  of ,  A.  D. 

18 — ,  at per  cent,  per  annum,  and  all  costs  of  suit,  as  of  record 

is  manifest: 

Therefore  you  are  hereby  commanded  to  seize  the  above  de- 
scribed property,  and  deliver  possession  of  the  same  to  the  said 
A.  B.,  and  of  the  goods  and  chattels,  lands  and  tenements  of  the 

said  C.  D.  cause  to  be  made*  said  sum  of dollars,  and  interest 

as  aforesaid,  together  with  the  sum  of dollars,  costs  adjudged 

against  the  said  C.  D.,  and  also  the  further  costs  of  executing  this  writ. 

Herein  fail  not,  and  have  you  the  said  moneys,  together  with  this 
writ,  before  said  court,  at  the  court-house  thereof  in  the  town  of 

,  on  the Mondav  in next,  being  the day  of , 

A.  D.  IS—. 

AVitness ,  clerk  of  the court  of count3\ 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this  the day  of ,  A.  D.  18 — . 

[Z.  s:\  w.  R, 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  R, 
Clerk  of Court, County. 

Where  it  is  shown  by  the  pleadings  and  evidence,  and  the  verdict,  if  any. 
that  the  personal  property  has  an  especial  value  to  the  plaintiff,  the  court  may. 
by  its  judgment,  award  a  special  writ  for  the  seizure  and  delivery  of  sucli  prof)- 
erty  to  the  plaintiff,  and  may,  in  addition  to  the  other  relief  granted,  enforce 
its  judgQient  by  attachment,  fine  and  imprisonment.     R.  S.  1339. 

Process  which  requires  only  the  delivery  of  specific  real  or  personal  property 
may  be  issued  at  the  same  time  to  different  counties.     R.  &  2337. 


84:  EXEOUTIOKS  AND  ORDERS  OF  SALE. 

No.  129. 

Execution  for  Personal  Property  or  its  Value. 

The  State  of  Texas,  To  t/ie  Sheriff  or  any  Constable  of County^ 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  18 — ,  A.  B.  recovered  a 

judgment  in  the court  of county,  against  O.  D.,  for  the 

title  and  possession  of  the  following  described  personal  property,  or 
its  value  as  hereinafter  stated  in  case  delivery  cannot  be  had,  viz. 
\liere  msert  a  particular  description  and  the  value  of  each  article  of 

proper ty\  and  also  for  the  sum  of dollars,  with  interest  thereon 

from  the day  of ,  18 — ,  at per  cent,  per  annum,  and 

all  costs  of  suit,  as  of  record  is  manifest: 

Therefore  you  are  hereby  commanded  to  seize  the  above-described 
property  and  deliver  possession  of  the  same  to  the  said  A.  B.,  but 
in  case  said  property,  or  any  part  thereof,  cannot  be  found,  so  that 
a  delivery  thereof  cannot  be  made,  then  of  the  goods  and  chattels, 
lands  and  tenements  of  the  said  C.  D.  cause  to  be  made  the  value 

thereof,  as  above  specified,  and  also  said  sum  of dollars  [as  in 

preceding  Formfron%'^\ 

No.  130. 

Execution  on  Forfeited  Delivery  Bond. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constahle  of County, 

Greeting: 

"Whereas,  on  the day  of  ,  A,  D.  18 — ,  A.  B.,  plaintiff, 

recovered  a  judgment  in  the  court  of  county,  against 

C.  D.,  defendant,  for  the  sum  of dollars,  with  interest  thereon 

from  the day  of ,  A.  D.  18 — ,  at per  cent,  per  annum, 

and  all  costs  of  suit,  as  of  record  is  manifest,  upon  which  there  is 
now  due  the  sum  of dollars,  and  the  further  sum  of dol- 
lars, costs  of  suit;  and  whereas,  on  the day  of ,  A.  D.  18 — , 

an  execution  was  issued  on  said  judgment,  directed  to  the  sheriff 
or  any  constable  of county,  which  was  returned  with  the  fol- 
lowing indorsement  thereon,  viz. :  "  Came  to  hand  on  the day 

of  ,  A.  D.  18 — ,  at o'clock  — .  M.,  and  executed  on  the 

same  day  by  taking  into  my  possession  the  following  described 
personal  property  of  the  defendant,  designated  by  him  to  be  levied 
upon,  viz.  [descrihe  the  property\  and  the  defendant  having  re- 
quested the  return  of  the  property  to  him,  and  having  tendered 
to  me  his  bond,  with  M.  N.  and  O.  P.,  sureties,  conditioned  for  the 

delivery  of  said  property  to  me  at ,  on  the day  of , 

A,  D.  i8 — ,  to  be  sold  according  to  law,  or  for  the  payment  to  me 

of  the  fair  value  of  said  property,  to  wit,  the  sum  of dollars,  I 

returned  said  property  to  said  defendant  on  the day  of , 

A.  D.  18 — . "- — ,  Sheriff  of  County;"  and   whereas, 


KXECUTIONS  AND  ORDERS  OF  SALE.  85 

afterwards,  on  the clay  of ,  A.  D.  18 — ,  the  said  sheriff  re- 
turned said  bond  to  the  clerk  of  said  court,  indorsed  "Forfeited:" 

Now,  therefore,  you  are  hereby  commanded  that  of  the  goods 
and  chattels,  lands  and  tenements  of  the  said  C.  D.,  principal  debtor, 
and  M.  N.  and  O.  P.,  sureties,  you  cause  to  be  made  the  said  sum 
of dollars  [the  amount  of  the  judgment^  vnth  costs,  hut  not  ex- 
ceeding the  stipulated  value  of  the  property^  Slg.^  also  the  further 
costs  of  executing  this  writ. 

Herein  fail  not,  and  have  you  the  said  moneys,  together  with  this 
writ,  before  said  court  at  the  court-house  of  said  county,  in  the 

town  of ,  on  the Monday  in next,  being  the day 

of ,  A.  D.  18—. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of J  this  the day  of ,  A.  D.  18—. 

[Z.  S.-\  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

Indorse  on  the  execution  that  no  delivery  bond  is  to  be  taken.    R.  S.  2359. 


No.  131. 

Yenditioni  Exponas. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County, 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  IS — ,  A.  B.  recovered  a 

judgment  in  the  court  of county,  against  C.  D.,  for  the 

sura  of dollars,  with  interest  thereon  from  the  day  of 

,  18 — ,  at per  cent,  per  annum,  besides  the  costs  in  that 

behalf  expended,  as  of  record  is  manifest.     And  whereas, , 

sheriff  of county,  has,  by  virtue  of  an  execution  issued  upon 

the  aforesaid  judgment,  levied  upon  certain  property  of  the  said 
C.  D.,  of  the  description  following,  to  wit:  {Ilere  describe  the  prop- 
erty levied  upon'] :  Therefore  you  are  hereby  commanded  that  yuu 
proceed  according  to  law,  and  sell  the  above-described  property  as 
under  execution,  and  apply  the  proceeds  thereof  to  the  ])ayraent 
and  satisfaction  of  the  aforesaid  sum  of  dollars,  with  the  in- 
terest due  thereon,  from  the  day  of  ,  A.  D.  18 — ,  at  the 

rate  of per  cent,  per  annum;  also,  the  sum  of dollars. for 

costs  of  suit,  which  against  the  said  C.  D.  were  adjudged,  together 
with  the  further  costs  of  executing  this  Avrit. 

Herein  fail  not,  and  have  you  the  said  moneys,  together  with 
this  writ,  before  said  court,  at  the  court-house  thereof,  town,  of 
',  on  the Monda}'^  in next. 


S6  EXECUTIONS  AND  OKDEES  OF  SALE. 

Witness ,  clerk  of  the court  of county. 

Given  under  m}''  hand  and  the  seal  of  said  court,  at  office  in  the 

town  of ,  this  the dav  of ,  A.  D.  18 — . 

[Z.  S.]  "  W.  F., 

Clerk  of Court, County. 

Issued  this day  of  ,  A.  D.  18 — . 

As  to  when  the  above  writ  is  authorized,  and  the  proper  procedure,  see  2  Tex. 
Civ.  Prac,  §  1296. 

No.  132. 

JExecution  iqwn  a  Judgment  Affirmed  with  Damages. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of Coimiy, 

Greeting: 

Whereas,  on  the day  of ,  A.  D.  18 — ,  A.  B.  recovered  a 

judgment  in  the court  of county,  against  C.  D.,  for  the 

sum  of  ■ dollars,  with  interest  thereon  from  the day  of 

,  18 — ,  at per  cent,  per  annum,  besides  the  costs  in  that 

behalf  expended,  as  of  record  is  manifest ;  and  whereas,  the  judg- 
ment of  our court  aforesaid  was,  on  the day  of ,  A.  D. 

18 — ,  affirmed  in  our  court  of  civil  appeals  for  the supreme 

judicial  district  [or  the  supreme  court],  against  the  said  C.  D.,  and 
M.  N.  and  O.  P.,  sureties;  and  whereas,  it  was  adjudged  by  the  said 
court  of  civil  appeals  that  the  said  A.  B.  do  have  and  recover  of 

the  said  C.  D.,  M.  N.  and  O.  P.  the  further  sum  of dollars,  by 

way  of per  centum  damages  for  delay,  as  appears  from  the 

mandate  of  said  court  of  civil  appeals  filed  in  our  said court 

on  the  day  of ,  A.  D.  18 — :  Therefore  you  are  hereby 

commanded  that  of  the  goods  and  chattels,  lands  and  tenements  of 
the  said  C.  D.  and  M.  N.  and  O.  P.,  you  cause  to  be  made  said  sum 

of dollars,  with  interest  thereon  at  the  rate  of per  cent. 

per  annum,  from  the  — —  day  of ,  A.  D.  18 — ;  also  tlie  sum 

of dollars,  the  damages  aforesaid,  with  interest  thereon  from 

the day  of ,  18 — ,  together  with  the  sum  of dollars, 

costs  of  suit,  and  the  further  costs  of  executing  this  writ. 

Herein  fail  not,  and  have  you  the  said  moneys,  together  Avith  this 

writ,  before  said  court,  at  the  court-house  in  the  town  of ,  on 

the Monday  in  ■ next,  being  the day  of ,  A.  JO 

IS—. 

Witness ,  clerk  of  the  court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  office  in  the 
town  of ,  this  the day  of ,  A.  D.  18 — . 

(L.S.]  W.  P., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

As  to  the  rate  per  centum  where  damages  are  allowed  on  afl&rmance,  see  R  S 
1024,  1028. 


shekiff's  deed.  87 

No.  133. 

Sheriff  ^s  Deed  on  Scde  of  Real  Estate. 

The  State  of  Texas,  ) 
County  of .       \ 

Know  all  men  by  these  presents,  that  whereas,  by  virtue  of  a  cer- 
tain execution,  issued  out  of  the court  of  the  count}^  of ,  in 

favor  of  A.  B.  and  against  C.  D.,  on  a  certain  judgment  rendered  on 

the day  of ,  A.  D.  18 — ,  and  directed  and  delivered  to  me, 

as  sheriff  of  the  county  of ,  commanding  me  of  the  goods  and 

chattels,  lands  and  tenements  of  the  said  C.  D.  to  make  certain 
moneys  in  said  Avrit  specified,  I,  J.  D.,  sheriff  as  aforesaid,  did  upon 

the day  of ,  A.  D.  18 — ,  levy  on  and  seize  all  the  estate, 

right,  title  and  interest  which  the  said  defendant,  on  the day 

of ,  A.  D.  18 — ,  so  had  of,  in  and  to  the  premises  hereinafter  de- 
scribed ;  and  on  the  first  Tuesday  of ,  A.  D.  18 — ,  within  the  hours 

prescribed  by  law,  sold  said  premises  at  public  vendue,  in  the  county 

of ,  at  the  door  of  the  court-house  thereof,  having  first  given 

public  notice  of  the  time  and  place  of  such  sale  by  causing  an  ad- 
vertisement thereof  to  be  posted  up  at  three  public  places  in  the 
county  aforesaid,  one  of  which  was  the  court-house  of  said  county, 
for  twenty  days  jirevious  to  said  sale,  and  by  delivering  and  mail- 
ing to  the  said  C.  D.  and  to  his  attorney  of  record  a  copy  of  said 
notice  as  required  by  law  \if  the  notice  was  published,  state  the  facts 
as  iti  Form  No.  l:2Jt] ;  and  whereas,  at  said  sale,  the  said  premises 

were  struck  off  to  John  Doe  for  the  sum  of dollars,  he  being 

the  highest  bidder  therefor,  and  that  being  the  highest  secure  bid 
for  the  same : 

Now,  therefore,  in  consideration  of  the  premises  aforesaid,  and 

of  the  payment  of  the  said  sum  of dollars,  the  receipt  of  which 

is  hereby  acknowledged,  I,  J.  D.,  as  the  sheriff  as  aforesaid,  have 
sold,  and  by  these  ])resents  do  grant  and  convey,  unto  the  said  John 
Doe,  all  the  estate,  right,  title  and  interest  which  the  said  C.  D. 

had,  on  the day  of ,  A,  D.  18 — ,  or  at  any  time  afterwards, 

of,  in  and  to  the  following  described  premises,  viz, :  [Describe  the 
property.'] 

To  have  and  to  hold  the  above-described  premises  unto  the  said 
John  Doe,  his  heirs  and  assigns  forever,  as  fully  and  as  absolutely 
as  I,  as  sheriff  as  aforesaid,  can  convey  by  virtue  of  the  said  writ 
of  execution. 

In  testimony  whereof  I  have  hereunto  set  my  hand  this day 

of ,A.  D;18— .  J.  D., 

Sheriff  of County. 

As  to  the  requisites  of  a  sheriff's  deed,  especially  in  the  description  of  the 
property  sold,  see  2  Tex.  Civ.  Prac,  g^  1293,  12'J4. 


ob  SCIKE   FACIAS    TO    REVIVE    A   JUDGMENT. 

No.  134. 

Scire  Facias  to  Bevive  a  Judgment. 

The  State  of  Texas,  To  the  Sheriff  or  any  Constable  of County ^ 

Greeting: 

Whereas,  it  appears  from  the  records  of  the  court  of  

countv^  that  A.  B.  recovered  a  judgment  in  said  court  on  the  

day  of ,  A.  D.  18 — ,  against  C.  D.,  for  the  sum  of dollars, 

with  interest  thereon  from  said  date  at  the  rate  of  per  cen- 
tum per  annum,  besides  the  sum  of  dollars  as  costs  of  suit, 

in  an  action  on  a  promissory  note  executed  before  that  time  by  the 

said  C.  D.  for  the  sum  of  dollars;  and  vv^hereas,  it  appears 

from  the  records  of  said  court  that  said  judgment  remains  wholly 
unsatistied,  and  that  execution  has  not  issued  thereon  within  twelve 
months  after  the  rendition  thereof,  and  the  said  A.  B.  has  applied 
to  our  said  court  for  a  remedy  in  this  behalf: 

jSTow,  therefore,  you  are  hereby  commanded  that  you  summon 

the  said  C.  D.  to  be  and  appear  before  the court  of county, 

to  be  holden  at  the  court-house.thereof  on  the Monday  in 

next,  being  the day  of  ,  A.  D.  18 — ,  then  and  there  to 

show  cause,  if  any  he  has,  why  the  said  A.  B.  ought  not  to  have 
his  execution  against  him  according  to  the  force,  form  and  effect  of 
the  said  recovery;  and  further  to  do  and  receive  what  our  said 
court  shall  then  and  there  consider  of  him  in  this  behalf. 

Herein  fail  not,  and  have  you  this  writ  before  said  court,  on  the 
said day  of ,  A.  D.  18 — ,  with  your  return  thereon  show- 
ing how  you  have  executed  the  same. 

Witness ,  clerk  of  the court  of county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  oflSce  in  the 
town  of ,  this day  of ,  A.  D.  18 — . 

[Z.  S.]  W.  F., 

Clerk  of Court, County. 

Issued  this day  of ,  A.  D.  18 — . 

W.  F., 
Clerk  of Court, County. 

Compare  article  2326a  of  the  Eevised  Statutes  of  1895  with  article  3361.  It 
seems  that  if  execution  issues  within  twelve  months  after  the  rendition  of  the 
judgment,  a  second  one  may  issue  at  any  time  within  ten  years  thereafter,  and 
so  on,  with  periods  of  ten  years  between  executions.  R.  S.  2326a.  If  execution 
has  not  issued  within  twelve  months  after  the  rendition  of  the  judgment,  the 
judgment  may  be  revived  by  scire  facias  or  action  of  debt  brought  thereon 
within  ten  years  after  the  date  of  the  judgment,  and  not  after.     R.  S.  3361. 

The  meaning  of  the  statute  seems  to  be  that,  if  the  judgment  becomes  dor- 
mant by  failure  to  issue  execution  within  the  first  twelve  months,  it  may  be 
revived  at  any  time  within  ten  years;  but  if  it  is  allowed  to  become  dormant 
by  the  lapse  of  ten  years  between  executions,  it  cannot  be  revived. 

For  the  proper  procedure,  see  2  Tex.  Civ.  Prac,  ^^5  1270,  1271.  The  defendant 
pleads  to  the  writ  any  defense  he  may  have  to  the  judgment,  such  as  nul  tiel 
record,  payment,  release,  etc.,  but  not  anything  which  he  could  have  set  up  as 


JUDGMENT    LIENS ABSTKACJ.  8^ 

a  defense  to  the  original  action.    An  action  of  debt  is  recommended  as  a  simpler 
remedy. 

The  judgment  is  that  the  plaintiff  have  execution.    2  Tex.  Civ.  Prac,  §  1271. 
See  Green's  Practice,  §§  1196-1209.; 


No.  135. 

Judgment  Liens  —  Abstract  of  Judgment. 

The  State  of  Texas, 

County  of . 

At  a  term  of  the court  begun  and  holden  at ,  within  and 

for  the  county  of ,  by  the  Hon. ,  judge  thereof,  in  a 

cause  numbered on  the  docket  of  said  court,  wherein  A.  B. 

was  plaintiff  and  C.  D.  was  defendant,  a  judgment  Avas  rendered  on 

the day  of ,  A.  D.  18 — ,  in  favor  of  the  said  A.  B.  and 

against  the  said  C.  D.  for  the  sum  of dollars,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum  from  date,  and  the 

further  sum  of dollars,  costs  of  suit;  and  there  still  remains 

due  on  said  judgment  the  said  sum  of dollars,  with  interest 

and  costs,  as  aforesaid  [o?"  state  the  amount  remaining  due']. 

I, ,  clerk  of  the court  of county,  Texas,  do 

hereby  certify  that  the  above  is  a  true  and  correct  abstract  of  said 
judgment  as  of  record  in  said  court. 

W  itness  my  hand  and  the  seal  of  said  court  this da}'  of , 

A.  D.  18—. 

[Z.  S.'\  W.  F., 

Clerk  of Court, County. 

As  to  the  requisites  of  the  abstract,  the  recording  and  indexing,  see  3  Tex. 
Civ.  Prac,  ^  1273. 


INDEX  TO  FORMS. 


The  references  are  to  Form  numbers  "when  not  otherwise  indicated. 


ABATEMENT  OF  ACTIONS  — 

suggestion  of  death,  of  u  sole  plaint- 
iff, 25. 
may  be  made  by  the  lieir,  25, 

note, 
of  a  sole  defendant,  26. 
of  one  of  two  plaintiffs,  27. 
of  one  suing  for  the  u.se  of  an- 
other, 28. 
of  sole  plaintiff  in  actions  for 
causing  death,  29. 
marriage  of  female  plaintiff  or  de- 
fendant, 30,  31. 
scire  facias  to  make  parties,  32. 
order  to  make  an  administrator  a 
party,  33. 

ABSTRACT  OF  JUDGMENT,  135. 

ACCOUNT  — 
affidavit,  86. 

AFFIDAVIT  — 

to  be  admitted  to  sue  as  poor  per- 
son, 0. 
or  for  appointment  of  counsel, 
10. 

for  citation  by  publication,  20. 
in  case  of  unknown  heirs,  22. 

for  service  of  notice  of  interroga- 
tories, 39. 

supporting  application  for  change 
of  venue,  44. 

counter,  on  application  for  a  con- 
tinuance. 47,  note. 

for  original  attachment,  49. 

of  claimant  of  property,  65. 

for  writ  of  sequestration,  67. 

for  injunction,  75. 

for  an  attachment  for  disobeying 
an  injunction,  78. 

to  an  account,  86. 

in  lieu  of  appeal  bond,  116. 

AFFIRMANCE    ON    CERTIFICATE, 
119-121. 

APPEAL  BONDS,  114-116. 

APPEALS  AND  WRITS  OF  ERROR  — 
cost  bond,  114. 

appeal  perfected,  wiien,  114,  note, 
writ  of  error,  how  obtained;  super- 
sedean,  114,  note. 


APPEALS  AND  WRITS   OF  ERROR 
(continued)  — 
svppvsedeaH  bond,  11.5. 
affidavit  in  lieu  of  cost  bond,  110. 
citation  in  error;  return,  117. 

service;  alias  d^nd piuries,  117, 
note, 
writ  of  supersedeas,  118. 
certiiicate  for  affirmance,  119,  120. 
indorsements  on,  121. 

ARBITRATION  — 

submission;    procedure,    83,     and 

note, 
oath  of  arbitrators,  84. 
the  award;  entering  judgment,  85, 

and  note, 
judgment  on  award,  108. 

ATTACHMENT  — 
for  a  witness,  36. 

for  disobeying  an  injunction,  78, 79. 
for  delivery  of   specific   property, 
128,  note. 

ATTACHMENT,  ORIGINAL  — 
affidavit  for,  49,  and  note, 
bond,  50,  and  note. 
form  of  writ.  51. 

when  issued;  how  levied;  sev- 
eral may  issue,  51,  note. 
ofBcer'.s  indorsement  and  return  of 
levy  on  personal  pi'operty,  51. 
on  real  estate;  registration  of 
writ,  p.  35,  and  note, 
report  of  disposition   of  personal 
property  after   return    of  writ, 
p.  35. 
bond  of  indemnity,  52. 
replevy  by  defendant,  53. 
application  for  sale  of  perishable 
property,  54,  and  note, 
order  of  sale,  55. 

officer's  return  or  report  of 
sale,  p.  38. 
judgment  for  plaintiff,  113.        • 

ATTORNEY  — 

appointment  for  poor  person,  10. 
or  on  service  by  publication,  11. 

BOND  FOR  COSTS,  13. 

affidavit  of  inability  to  give,  9. 

on  appeal  or  writ  of  error.  114. 

affidavit  in  lieu  of,  116. 


92 


INDEX   TO    FORMS. 


BOND  OF  INDEMNITY  — 
on  levy  of  attachment,  52. 

BONDS  — 

for  attachment,  50,  and  note. 

in  garnishment,  59. 

of  claimant,  66. 

for  writ  of  sequestration,  68. 

of  purchaser    of    property  seized 

under  writ  of  sequestration,  74, 

and  note, 
for  injunction,  76. 
for  certiorari,  81. 

CERTIORARI    TO    JUSTICES' 

COURTS  — 
petition  for  and  order  of  judge,  80. 
form  of  bond,  81. 
bond,  petition  and  order  must  be 

filed,  81,  note, 
form   of  writ;    when   returnable; 

supersedeas  and  citation,  83,  and 

note. 

CHANGE  OF  VENUE  — 
consent  of  parties,  43. 
application  for,  44. 

supporting    affidavit,    44,   and 
note. 
order  for,  45. 
duty  of  clerk,  45,  note. 

CITATION  BY  PUBLICATION  — 
appointment  of  counsel  for  defend- 
ant, 11. 
affidavit  for,  20. 

in  suits  against  life  or  health 
insurance      companies,      20, 
note, 
in  suits  for  partition,  20,  note, 
form  of  writ,  21. 

in  suits  for  partition,  21,  note, 
affidavit  for  citation  to  unknown 
heirs,  22. 
form  of  writ,  23. 
officer's  return,  24. 
citation  in  error,  117,  note. 

CITATION  FOR  PERSONAL  SERV- 
ICE— 

general  form,  14. 

service  and  return,  14,  note. 

alias  and  plaries,  14,  note. 

sheriff's  indorsement  and  return, 
p.  14. 

where  the  suit  is  by  or  against  one 
in  a  particular  capacity,  15. 

for  a  domestic  corporation,  16. 
should  name  local  agent,  16, 
note. 

for  a  foreign  corporation,  IT". 

against  a  life  or  health  insurance 
company,  17,  note. 

for  a  city,  town  or  village,  18. 

against  a  county,  served  on  county 
judge,  18,  note. 

against  partners,  19. 

how  served,  19,  note. 


CITATION  IN  ERROR,  117.     • 

CLERK  OF  COURT  — 

bond  of  district  clerk,  5. 
jjro  tem..  appointment  of,  6. 

bond  required,  7. 
appointment  of  deputy,  8. 

CONFESSION   OF  JUDGMENT,  102- 
104. 

CONTINUANCE  — 
first  application,  46. 
second  application,  47. 
counter-affidavits;  admitting  facts,. 

47,  note. 
order  of  court,  48. 

DEFAULT  — 

forms  of  judgments,  96-101. 

DELIVERY  BOND  — 

by  defendant  in  execution,  126. 
forfeited;  execution  on,  130. 

DEPOSITIONS  — 

notice  of  filing  interrogatories,  37. 
must  be  filed;  how  served,  37, 
note, 
may  be  taken  when,  37,  note, 
precept  to  serve  notice  of  interrog- 
atories, 38. 
on  a  corporation,  38,  note, 
affidavit  for  service  of  notice  of 
interrogatories    by   publica 
tion,  39. 
precept  to  serve  notice,  40. 
officer's  return,  40. 
commission  to  take  testimony,  41. 
to  whom  addressed,  41,  note, 
cross-interrogatories,  41,  note, 
instructions  to  the  commissioner, 
42. 

DEPUTY  CLERK  — 

appointment.  8. 

DEPUTY  SHERIFF  — 

appointment  and  bond,  3,  4> 

DORMANT  JUDGMENTS,  134,  note. 

EXECUTIONS    AND    ORDERS    OF 
SALE  — 
execution  for  money,  122. 
general  provisions,  122,  note, 
return  of  sale  of  personal  property, 
123. 
of  real  estate,  124 
procedure  on  sale  of  real  estate,  124^ 

note, 
notice  of  sale  of  real  estate,  125. 
delivery  bond  by  defendant,  126. 

forfeited,  execution  on,  130. 
order  of  sale  on  foreclosure  of  lien, 

127. 
for  delivery  of  personal  property, 

128,  and  note, 
for  personal  property  or  its  value,. 

129. 


INDEX   TO   FORMS. 


93 


EXECUTIONS  AND  ORDERS  OF 
SALE  (continued)  — 

venditioni  exponas,  131. 

on  judgment  affirmed  with  dam- 
ages. 182. 

sheriff's  deed,  133. 

GARNISHMENT  — 

application  for  writ  in  aid  of  an 
attachment,  56. 
wliere  plaintiff  sues  for  a  debt 
without  suing  out  an  attach- 
ment, 57. 
after  judgment,  58. 
bond  required,  when,  59. 
form  of  writ,  GO. 
service  of  writ.  fiO.  note, 
replevy  bond,  Gl. 

commission  to  take  answer  of  gai'- 
nishee.  62. 
summoning  garnishee    before 

commissioner.  63,  and  note, 
commissioner's  return,  p.  44. 
notice  to  garnishee  that  his  answer 
is  controverted,  64,  and  note. 

GUARDIAN  AD  LITEM  — 

appointment  of,  13. 

INJUNCTION  — 

application  for;  order  of  judge,  75. 
bond,  76. 

writ  of  injunction,  77. 
disobedience,    application    for    at- 
tachment, 78. 
order  of  court.  78. 
attachment,  79.  , 

JUDGMENT  LIENS  — 

abstract  of  judgment,  135. 

JUDGMENTS  — 

on  exception  to  petition  or  answer, 

87-93. 
of  nonsuit,  94,  95. 
by  default,  96-101. 
of  dismissal,  100. 
by  confession,  102-104. 
by  nil  (licit,  105. 
for  plaintiff,  on  verdict,  106. 
on  trial  by  court,  107. 
on  awax'd  of  arbitrators,  108. 
for  recovery  of  specific  prop- 
erty, 109. 
in  suit  for  specific  property,  the 
same  having  been  replevied,  110. 
for  recovery  of  land.  111. 
foreclosing  a  lien,  112. 
in  suit  by  attachment,  113. 
scire  facias  to  revive,  134,  and  note. 

JUDICIAL  SALES  — 

notice  and  return,  123-125,  and 
notes. 

JURY  TRIAL  — 

in  case  of  default,  96,  97,  notes. 


LEVY  — 

of  writof  a(tach»iient,51.andnotes. 

LIEN  — 

judgment  foreclosing,  113,  113. 
order  of  sale,  127. 

NOTICE  — 

ol  filing  interrogatories,  37. 

precept  to  serve,  38. 
to  garnishee  that  his  answer  is  con- 
troverted, 64. 
of  sale  on  execution,  123-125. 

NOTICE  BY  PUBLICATION  — 
of  filing  inteiTogatories,  39,  40. 
of  sales  on  execution,  124,  125. 

OATH  — 

of  office,  1.  3.  note. 

of  clerk  of  district  court.  5,  note. 

of  deputy,  8,  note, 
of  arbitrators,  84. 

OFFICIAL  BONDS  — 

sheriff's,  2. 
of  deputy  sheriff,  4. 
clerk  of  district  court,  5. 
clerk  pro  tevipore,  7. 

ORDERS  OF  COURT  — 

admitting    one    to   sue  in  forma 
pauperis,  and  appointing  coun- 
sel, 10. 
appointing  counsel  to  defend  for 

one  cited  by  publication,  11. 
appointing  guardian  ad  litem,  12. 
to  make  an  administrator  a  party, 

oo 

for  change  of  venue.  45. 

for  a  continuance,  48. 

sale  of  perishable  property  seized 
under  writ  of  sequestration,  p.  51. 

for  an  injunction,  75. 

attachment  for  disobeying  an  in- 
junction, 78. 

awarding  a  certiorari  to  a  justice, 
80. 

ORDERS  OF  SALE  — 

of  personal  property  seized  under 
attachment,  55. 
under  writ  of  sequestration,  73. 
on  foreclosure  of  lien,  127. 

POWER  OF  ATTORNEY  — 
to  confess  judgment,  103. 

RECEIVER  — 

service  of  citation  in  suits  against, 
16,  note. 

REPLEVY  BOND  — 

by  defendant  in  attachment,  53, 

and  note, 
in  garnishment,  61. 
in  sequestration,  70,  71. 


94 


INDEX    TO   FORMS. 


RETURN  OF  WRITS  — 

citation,  14,  and  note. 

citation  by  publication,  24 

sub]ioena,  35. 

attachment  for  witness,  86. 

of  precept  to  serve  notice  of  inter- 
rogatories, 38,  40. 

writ  of  attachment,  pp.  34,  35. 

order  of  sale  of  personal  property 
seized  under  attachment,  p.  38. 

commissioner's  return  in  taking 
answer  of  garnisliee,  p.  44. 

writ  of  sgquestration,  p.  49. 

order  of  sale  of  property  seized 
under  writ  of  sequestration,  p.  52. 

attachment  for  disobeying  an  in- 
junction, p.  56. 

citation  in  error,  117. 

executions  and  orders  of  sale,  123, 
124. 

SALE     OF     PERISHABLE     PROP- 
ERTY— 
property  seized  under  attachment, 
application,  54. 
order  of  sale,  55. 

officer's  return,  p.  38. 
replevy  of  proceeds,  53,  note, 
notice;  time  of  advertisement, 
54,  note, 
in  sequestration,  application   for, 
72. 
order  of  judge,  p.  51. 
order  of  sale,  73. 
bond  of  purchaser,  74 

SCIRE  FACIAS  — 

to  make  parties,  32. 

to  revive  a  judgment,  134,  and  note. 

SEQUESTRATION  — 
affidavit  for  writ,  67. 
analysis  of  articles  4864-65,  R  S., 

p.  47. 
bond  for  writ,  68. 
form  of  writ,  69. 

officer's  return,  69. 
writ  not  issued  until  petition  filed, 

69,  note, 
replevy  by  defendant,  70,  and  note, 
replevy  by  plaintiff,  71. 
sale  of  perishable  property;  order 
of  judge,  72. 
order  of  sale;  sheriff's  return, 

73. 
bond  of  purchaser,  74 

SERVICE  OF  CITATION  — 
generally,  14,  note. 
on  a  domestic  corporation,  16,  note. 


SERVICE  OF  CITATION  (con.)  — 

in  a  suit  against  a  receiver,  16, 
note. 

on  a  foreign  corporation,  17. 

on  a  life  or  health  insurance  com- 
pany. 17,  note. 

on  a  city,  town  or  village,  18. 

in  suits  against  counties,  18,  il'ote. 
or  partners,  19. 

citation  in  error,  117. 

SERVICE  OF  NOTICES  — 

filing  interrogatories,  37,  note, 
precept,  38,  40. 

SERVICE  OF  WRITS  — 

subpoena  for  witnesses,  35,  note. 

of  garnishment,  60,  note. 

writ  summoning  garnishee  to  ap- 
pear before  commissioner,  63, 
note. 

notice  to  garnishee  that  his  answer 
is  controverted,  64,  note. 

SHERIFF  — 

oath  and  bond,  1,  2. 
deputy,  appointment  of,  3. 
bond  to  the  sheriff,  4 

SHERIFF'S  DEED,  133. 

SUBPCENA  DUCES  TECUM,  35. 

SUBPCENA  FOR  WITNESSES,  34  35, 

note. 

SUIT  IN  FORMA  PAUPERIS  — 
affidavit  of  poor  person,  9. 
appointment  of  counsel  for,  10. 

SUPERSEDEAS  — 

prayer   for;    when    required,    114, 

note;  118. 
form  of  bond,  115. 

on  recovery  of  land,  115,  note, 
form  of  writ.  118. 

TRIAL  OF  RIGHT  OF  PROPERTY  — 

claimant's  oath,  65. 
claimant's  bond,  66. 
return    of    writ;    jurisdiction    of 
courts,  66,  note. 

VENDITIONI  EXPONAS,  131. 

WITNESSES  — 

subpcBna  for,  34,  35. 

attachment  against,  36,  and  note. 

return,  36. 
non-attendance,  36,  note. 

WRIT  OF  ERROR.    See  Appeal 


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